Cloud Computing – The Legal Issues Are Somewhat Cloudy in the Cloud
“Cloud computing” is a hot topic. For the uninitiated, the “cloud computing” generally refers to the provision of access to computer software through an Internet browser, with software and data stored in a remote location to a data center or “servers”, instead of on the hard disk of the computer or on a server, users of the facilities. This is also known as “software-as-a-service.”
The advocates of this approach claim many benefits, including a reduction of costs, less need for on-site support and scalability.” “Scalability” means that the number of licenses and available resources can be easily adjusted as demand increases. Access may be provided to the rule from any computer with a browser and an Internet connection, but can be controlled through password protection and other measures. The advocates also argue that the cloud makes it easier to manage and push down software updates. Software-as-a-service is usually on a fee for service approach, the cost-saving with respect to the traditional local network. Think of it as something similar to the bicycle, unlike the possession.
Cloud computing is not a technology of the future, but here and now. Google, for example, uses this approach in its suite of business applications, the competition with Microsoft Office. The Google applications are free of charge or at very low cost. Salesforce.com it is one of the most well-known suppliers, providing customer relationship management (“CRM”) software to a growing number of companies. IBM and Microsoft are also entering the field of play.
There is No doubt that it seems that cloud computing is here to stay, and that perhaps represent, in fact, the future of information technology. There are many advantages and potential benefits of the cloud-computing model.
That is to say, from a legal point of view, cloud computing is a variety of questions throws. After talking recently to several cloud-computing providers, there are some obvious questions. Perhaps the most obvious question is “What happens if I lose my data?” The answers that was provided, focused on the technical and legal aspects, such as the back-up procedure.
Technical questions are important, and there are certainly technical issues that a potential customer may have in mind, such as, for example, the back-up on the Website, or a back-up to a separate provider. These ideas are some real practical protection in the event of a catastrophe bankruptcy or insolvency of one of the leading suppliers could offer. Other technical problems may focus on what happens when the relationship ends, whether it is happy or not. There are other manufacturers, the software and data are hosted? The data are converted to a different format? If the customer decides to return to a local network, will the terminals that have been used for cloud computing (which, I feel, can be very basic “low powered” machines) all use, or a completely new network needs to be installed?
Although the technical solutions are a good thing about twenty-five years of litigation experience have taught me that disasters happen even with fail-safe plans in place, and even with parties acting in complete good faith. And, I guess, it is natural for a lawyer to focus on legal rights and remedies, not as in technical solutions.
From a legal point of view, the cloud computing appears to have a variety of essential contractual issues to be resolved by the parties in the contract or contracts of license. There are also potential regulatory issues (ranging from privacy, and export control), possible e-discovery issues, and, no doubt, other issues that have not yet come to mind.
As companies and their lawyers, more and more experience with cloud computing-issues, it is likely that a consensus to emerge, such as cloud-computing issues to be addressed. Fortunately, the provider of cloud computing services are flexible and reasonably relates in addressing legitimate business. Given the prevalence of the “standard” licensing in the software field (often in a shrink-wrap or clickwrap basis) and the efforts for the limitation of liability in any case, there are reasons for pessimism.
All that said, here is a list of questions, you may want to check if a vendor or otherwise considering in entering into a possible cloud computing arrangement:
What is the contractual obligation you assume to protect my data? This could up the reference to certain formalities and procedures, including back-to-obligations. Of the contract or license may specify a standard of treatment, it is necessary that the provider comply.
What is the contractual obligation that you assume in terms of availability, in any case? Do you offer any type of uptime warranty? Even if this warranty is subject to a limited remedy, it would probably be a great incentive for the provider to reduce the downtime.
The majority of suppliers seem to be smart enough to take any interest in your data and free to say-in a sales environment, anyway-that “your data are the data.” Well, this is good, but how can I go physically with my data again at the end of the contract, or, if you are broke?
What remedy limitations, if any, are in the terms and conditions? They are the result of damage? Are overall immune to damage (as a return of rates)? Also, if the contractual obligations are accepted, if resources are very limited, it can be suppliers, and protected from liability.
You have introduced a forum selection clause in the terms and conditions? Many providers want to insist on litigating on their home town (which is often, it seems, in California), but rarely is a good example for a customer.
How do I get out of this agreement, when they carry out, and what is my exit strategy? What are my rights in case of termination? What obligations has to support the transition to a new provider or back to a self-managed platform?
If you are planning on going to the cloud, you have with your business and technology attorney at the beginning of the process. As I said, there are certainly many other legal issues had not occurred even to me. It is clear, however, that lawyers need to start about these issues, because cloud computing is not clear.