CLOUD COMPUTING based Digital Data – who owns it?

TOS-agreementMy Jan 6th 2011 blog post titled Your Digital Data – who really owns it? (Often not you!) introduced digital data ownership issues related to items #1 and #2, this blog talks about #3 below:

  1. Software Programs (media based)
  2. Downloads (i.e. music and e-books)
  3. Cloud Computing (Internet SAAS)

Category 3 is a hybrid of categories 1 & 2 plus has its own unique elements. Internet  SAAS (Software As A Service) such as Google Apps is the type of cloud computing most often used by small and medium size businesses.  Ownership is fundamentally a legal issue, but since judicial systems move slowly compared to technology I’m sure court challenges and precedents are still forthcoming. In the meantime it’s safe to say, as with categories 1 & 2 the “Terms of Service” (TOS) agreement you accept (knowingly or un-knowingly) is a binding contract.  Ownership law has basic fundamentals, one being that a court typically allows specific written agreement terms to supersede (hold priority over) industry policy and tradition.

What types of digital data does Cloud Computing (Internet SAAS) involve? As many as you can imagine: virtually every type of software program (Operating System, Middleware, Applications, Widgets/Gadgets, etc),  a wide array of Media Downloads (songs, videos, audio recordings, photographs, graphics, drawings) and the ability to create and/or store nearly every form of data file you can think of. It’s easy to see how a complex ownership issue could arise.

DISCLAIMER – I am not an attorney and nothing written here constitutes nor represents legal advice. Consult an attorney for specific questions or legal advice.

Google along with Microsoft, Amazon, IBM, Oracle, HP and hundreds more have Cloud Computing services that involve digital data ownership. Too many for analysis in a blog post, so I’ve listed 5 brief extracts from Google’s TOS that relate to digital data ownership:

  1. Domain Name Ownership – Customer must first acquire and hold ownership control over their Domain name.  “…If Customer does not own, or control, the Customer Domain Names, then Google will have no obligation to provide Customer with the Services…”.
  2. Customer Data (as defined in TOS) – “…means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users…”
  3. Intellectual Property Rights.  – “…Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Google owns all Intellectual Property Rights in the Services…”
  4. Effects of Termination.  – “…If this Agreement terminates, … Google will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time…”
  5. Indemnification (Responsibility implies ownership)
    • By Customer. –  “…Customer will indemnify, defend, and hold harmless Google from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names…”
    • By Google. –  “…Google will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that Google’s technology used to provide the Services

I believe Google makes it clear digital data generated by a customer while using their cloud software or data the customer transmits to the cloud is still OWNED by the customer. To reinforce this belief, I reference a unique team funded by Google, the Data Liberation Front, defined as:

“…an engineering team at Google whose singular goal is to make it easier for users to move their data in and out of Google products.  We do this because we believe that you should be able to export any data that you create in (or import into) a product…”.

If Google’s ownership terms seem constrictive or limiting, consider the TOS of other cloud based companies (i.e. Facebook, MySpace, eBay, iTunes etc). People freely enter and transmit lots of their data to these systems and upon doing enter a “dual ownership” status. You may own your data, but the social network has possession, legal rights to use it for its benefit and may lack export options for you to get it back.  Typically they even lack obligation to permanently erase your data when you terminate your profile or account with them.


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