
Amazon Web Services terms of use: run far away, run fast - dctoedt
http://epiclaw.net/node/81
======
spdustin
What a horribly wrong post. First off, I'm confident that many big-boy lawyers
have been over those terms with a fine-toothed comb, so I wanted to lead with
that, since I'm not a big-boy lawyer myself. All emphasis is mine.

1) Section 3.2 on data privacy makes it clear: "We will not access or use Your
Content _except as necessary to maintain or provide the Service Offerings_ "
[or if legally and lawfully compelled]

Full stop. I shouldn't have to go on to number two.

2) Section 8.1: "As between you and us, _you or your licensors_ own all right,
title and interest in and to _Your Content_ "

Full stop again. It's pretty clear. But, hey, there's a dead horse over there,
and he looks like he needs a beatin'...

3) Same section: "[with exceptions noted later] we obtain no rights under this
Agreement from you our your licensors to Your Content, _including intellectual
property rights_ "

But let's go directly to his quoted section.

4) "You will not assert ... against us ... any patent infringement or any
other intellectual property infringement claim _regarding any Service
Offerings you have used_ "

So, if it's not clear: you can't sue Amazon claiming that Simple Storage
Service (S3) comprised a patent violation. You can't sue Amazon saying that
they're violating your intellectual property rights when they serve your web
page from an edge cache in Zimbabwe. They've already stated unequivocally in
prior sections that they assert ZERO rights to your code/images/markup/etc
("Your Content").

How is this person practicing law?

~~~
jamiesonbecker
If you build a server monitoring service running on EC2 that has some aspect
_that is patented_ , could AWS incorporate that feature into EC2?

update: emphasized _patented_

~~~
spdustin
"...we obtain no rights under this Agreement from you our your licensors to
Your Content, including intellectual property rights..."

They could clean-room re-engineer it. So could anybody else. But, no, they
could not simply take your monitoring code because they disclaimed having ANY
intellectual property rights to it already. Saying "as necessary to maintain
or provide the Service Offerings" covers _hosting and backups_. After all,
your code, patented or not, is not necessary to maintain or provide their
Service Offerings; their Service Offerings were already being maintained and
provided.

------
UnoriginalGuy
Their reading of that quote is extremely strange.

All that quote says is "you won't sue us for your use of AWS, or claim you own
AWS's IP." Seems like a standard and obvious clause.

I don't see where it says:

> With this clause, Amazon could quite literally copy any of it's customers'
> software, and their brands, that Amazon hosts on and displays from its
> servers, fold that into its Amazon Web Services offering, and call it a day.

What? That isn't what it says at all. In fact it limits the scope of the claim
to "Service Offerings" which is rigidly defined.

The author seems to be struggling to read legalese and is misinterpreting it.

~~~
bkanber
I think the author is making the claim that AWS could add any new product to
their Service Offerings at any time (they can) and that Amazon _could_ clone a
customer's IP and add it as a Service Offering on AWS, and this clause would
prevent the customer from suing.

I also disagree that this is the correct interpretation, or that this is an
issue at all, but I believe that's the author's reading.

~~~
JustSomeNobody
Well, isn't there some precedent?

[https://news.ycombinator.com/item?id=11533973](https://news.ycombinator.com/item?id=11533973)

~~~
an_account
That's not precedent because they aren't cloning products that are patented
and they aren't cloning IP. All they're doing in that case is making a
competitive product.

~~~
JustSomeNobody
Agreed, but sure is ruffling feathers. And makes them seem not very
trustworthy.

------
draugadrotten
> _With this clause, Amazon could quite literally copy any of it 's customers'
> software, and their brands, that Amazon hosts on and displays from its
> servers, fold that into its Amazon Web Services offering, and call it a
> day._

What leads the blogging Sean to say something like that?

Admittedly, English is not my first or even second language, but the way I
read the quoted paragraph, Amazon talks only about their own IP, the Amazon
AWS Service Offering and "any other product or service" provided by Amazon.

    
    
      Where do they talk about the super secret IP created by Sean Hogle?

------
MichaelBurge
The claim is that you agree not to sue Amazon for IP violations, so they could
do whatever they want and an honest man constrained by his code of honor to
never break any agreement would be powerless to stop them. Genies and devils
would also have no recourse.

Most concerned users on this site are startup founders or CTOs, who aren't
likely to have a code of honor of any sort except for marketing purposes. So
it's worth asking what the punishment is for breaking the agreement and suing
them anyways.

The punishment for violating the agreement is that they can shut off your
service and tell you to go away in 30 days.

So my reading is that if Amazon stole your Redshift-competitor and you sued
them for copyright infringement:

* You'd win the lawsuit, because you never gave them a license to use your code.

* You'd be blackballed from AWS, banned from either using AWS or working for anyone who uses AWS. You'd have 30 days to move your product to Google Cloud or Azure.

Which seems reasonable to me.

------
jonaf
So.. If Amazon is capable of this, why haven't they done it? In fact, instead,
they have been purchasing companies (OpsWorks used to be a product by a third
party company; can't get reference on a phone at the moment).

This makes me believe that Amazon knows this clause is unenforceable or that
they would lose in court if they tried to act on it.

~~~
bkanber
Not a lawyer, but I think the reason Amazon did this is to prevent themselves
against Oracle vs Google type issues.

Alternatively, it could prevent attacks against AWS packaging popular software
like Node or Wordpress in their offerings. One day Node might get upset at
being repackaged and sold on AWS as part of Lambda or whatever (dunno if this
is accurate but you get the idea), and Amazon wants to protect themselves
against being sued in the future for that type of packaging.

~~~
jon-wood
This wouldn't actually help in the case of Node becoming upset about Amazon
using their code. The agreement is between the AWS customer and Amazon -
Node's owners aren't party to it.

Besides which, Node's licence expressly grants permission to build commercial
products on top of it.

------
gohrt
Is it common for licensed lawyers to publicly post legally suspect,
grammatically incorrect advice?

Does that not fall squarely under malpractice, the sort of thing that lawyers
usually disclaim with "IANYL"?

------
godzillabrennus
It'd be interesting to see a resource created and dedicated to evaluating
cloud service terms of use.

~~~
kristjan
[https://tosdr.org/](https://tosdr.org/)

------
mechaman44
What happened to the site? I can't access it... Is it still up?

~~~
kep1122
here is the text.

Skip to Main Content Home Home Sean Hogle blog staff contact Amazon Web
Services terms of use: run far away, run fast

11 June 2016 Amazon sells Amazon Web Services (AWS), a collection of cloud-
hosting services. Amazon promotes AWS as a way for companies to secure
computing capacity quickly and economically, eliminating the need to purchase
and maintain physical servers. Thousands of companies, including traditional
mainline businesses, internet startups and technology ventures, use AWS to
host their software and brands on Amazon servers, including Comcast, Siemens,
Reddit and Netflix.

The AWS Customer Agreement
([http://aws.amazon.com/agreement/](http://aws.amazon.com/agreement/))
contains an IP non-assertion clause that is breathtaking in its reach: "During
and after the Term, you will not assert, nor will you authorize, assist, or
encourage any third party to assert, against us or any of our affiliates,
customers, vendors, business partners, or licensors, any patent infringement
or other intellectual property infringement claim regarding any Service
Offerings you have used." "Service Offerings" are defined as AWS, "(including
associated APIs)", the "AWS Content" (which includes software), the "AWS
Marks" (which are any marks that Amazon uses now or in the future), and "any
other product or service" provided by Amazon under this agreement.

With this clause, Amazon could quite literally copy any of it's customers'
software, and their brands, that Amazon hosts on and displays from its
servers, fold that into its Amazon Web Services offering, and call it a day.

Each of Amazon's customers has essentially granted to Amazon, and to all of
Amazon's customers, vendors, and partners, the equivalent of an unlimited
royalty-free IP license, forever, to all the software, content, brands and
technology that Amazon hosts for them.

An extensive discussion about this matter and sample contract language (with
redlined variations) are available at Redline (redline.net):
[http://redli.ne/1UIRlO7](http://redli.ne/1UIRlO7).

Sean Hogle's blog notices log in

© 2006, 2016 Sean Hogle PC. All rights reserved.

------
Tiquor
The post author has a reading comprehension problem.

------
ramenmeal
Do these ridiculous ToS/ToU hold up in court?

------
dctoedt
I posted this link and am surprised to see that it's been flagged. Sean
Hogle's interpretation is _not at all_ unreasonable. (I've been an IP lawyer
for longer than I care to admit, and I teach a law-school course in contract
drafting.)

In particular:

1\. A court would try to interpret the AWS TOS so as to give effect to _all_
of its provisions.

2\. Of the provisions that spdustin cites, [0] the important one says: "We
will not access or use Your Content _except_ as _necessary_ to _maintain_ or
_provide_ the Service Offerings ...." (Emphasis added.)

3\. I can _easily_ imagine an edge-case scenario: Suppose hypothetically that
[i] Amazon's engineers decided that they wanted to borrow an idea or technique
or method from a customer's code for use in the AWS feature set, and [ii] they
came up with arguments why doing so was supposedly "necessary" to "maintain"
or "provide" the Service Offerings.

4\. The question would then arise: Does the term "maintain or provide the
Service Offerings" encompass the making of improvements to them? Many would
say "no," but that would most assuredly not be a slam dunk. Here are two
arguments I would make in favor of "yes":

A. I haven't taken the time to look, but I would bet money that the term
"Service Offering" is defined so that it encompasses AWS's future features as
they're developed, not just the existing feature set. This would support the
argument that "necessary ... to provide the Service Offerings" encompasses
using Your Content to _further develop_ the Service Offerings.

B. Enterprise-software customers usually buy maintenance as well as licenses.
Traditionally, as long as you're on maintenance, you're entitled to whatever
upgrades the vendor releases during your maintenance period. A court would
almost certainly consider that as weighing in favor of saying that the term
"maintain ... the Service Offerings" encompasses further development.

Both A and B above would weigh in favor of interpreting Section 3.2, cited by
spdustin, as expressly authorizing Amazon to use Your Content in doing further
development of the AWS feature set.

Arguments A and B wouldn't be a slam dunk either, in part because of the
_contra proferentem_ principle of contract interpretation, which says that
_other things being equal_ , an ambiguous contract provision will be construed
in favor of the party that didn't draft the provision [1]. But it'd be an
expensive proposition for an AWS subscriber to try to duke it out with Amazon
on that point.

[0]
[https://news.ycombinator.com/item?id=11889449](https://news.ycombinator.com/item?id=11889449)

[1]
[http://www.commondraft.org/index.html#ContraProf](http://www.commondraft.org/index.html#ContraProf)

------
jamiesonbecker
FWIW, the author of that blog is a law firm that specializes in intellectual
property.

~~~
donpark
Unless I'm mistaken, 'protection' goes beyond AWS to include "any of our
affiliates, customers, vendors, business partners, or licensors."

This effectively creates a safe harbor against not only trolls but also legit
patent holders who foolishly decide to use AWS.

~~~
spdustin
You are mistaken.

"...we obtain no rights under this Agreement from you our your licensors to
Your Content, including intellectual property rights..."

~~~
donpark
I stand corrected. thx.

