qmul cloud legal project cloud legal project: began in oct 2009 as 3 year project - funded by...
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QMUL Cloud Legal Project
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Cloud Legal Project:
• Began in Oct 2009 as 3 year project - funded by Microsoft.
• Focus? To address legal and regulatory issues concerning cloud computing with a view to reducing uncertainty.
• Based at the Centre for Commercial Legal Studies at Queen Mary, University of London.
• Expertise in law and technology issues and intellectual property law.
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• To date, papers have been published on: - Standard Cloud T&Cs
- Negotiated Cloud Contracts
- UK G-Cloud
- Data Protection & Cloud
- Information Ownership & Cloud
- Competition Law & Cloud
- Law enforcement access & Cloud
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• In 2012, papers forthcoming on:
- Consumer Protection & Cloud
- Cloud Governance
• All research available at: http://www.cloudlegal.ccls.qmul.ac.uk/index.html
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Negotiated Cloud Contracts?
Our research was based upon:
• Informal discussions with cloud ‘actors’• Detailed confidential interviews with over 20 organisations of at least an hour each between Dec 2010 & early 2012, including: - Cloud providers (SaaS IaaS PaaS / UK & Global) - Cloud users (businesses & public sector) - Law firms and insurance companies.
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Negotiated Cloud Contracts - Main Conclusions?
• Standard contract terms reflect importance of the consumer distribution model in cloud provision
• Certain factors are forcing providers to become more flexible: - Trad. IT service vendors/companies willing to accept risk are entering market and offering enterprise grade services with matching contracts - Niche providers and integrators are emerging, more willing to tailor contract terms and service features - To remain competitive, flexibility and customer awareness are required
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Negotiated Cloud Contracts - Main Conclusions?
• Even large providers are realising they must adapt, thus offering a range of services with different pricing and terms
• Large users able to require contracts be drawn on their terms are considering producing standard SaaS and IaaS terms e.g. financial institutions
• May be scope for co-ordinated collective efforts in this regard
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Negotiated Cloud Contracts - Main Conclusions?
• Mid to low value markets?
- Choice and information are still limited; many contract terms are still inadequate or inappropriate for users needs.
- Limited bargaining power
• Hopefully there will be a filtering down of know-how to the mid market at least
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Negotiated Cloud Contracts - Main Conclusions?
• Low value market? Regulatory/Legislative action perhaps needed e.g. consumer protection law, data protection law
• Such actions need to reflect technological/logistical reality of cloud, so that action does not stifle benefits
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Negotiated Cloud Contracts - Main Conclusions?
• Encouragement of range of of available cloud services, with appropriate terms, may be the way to go. • Unfair of users to expect a tailored service on cheap, commoditised public cloud delivered on shared infrastructure
• Awareness and education re: cloud expectations helpful here
• Also, industry self regulation certification helpful
• Plus, more transparency/openness about ‘nature’ of cloud e.g. reality of ‘layering’ of service and data location.
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Cloud Computing & Consumer Contracts?
• Consumer protection law has a role to play in ensuring this culture of openness and transparency about the reality of use of the cloud and also regulating question of subsequent liability in consumer market.
• Consumer protection being both ex ante and ex post
• Also, again, industry self regulation has a role here e.g. Cloud Industry Forum in UK / Code of Practice.
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Cloud computing & Consumer Contracts?
Ex ante?
• Unfair Commercial Practices• Advertising Standards e.g. UK ASA• Distance Selling - as now subsumed with Consumer Rights Directive• E-commerce Directive• Consumer Rights Directive• Self Regulation. • Design?
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Cloud computing & Consumer Contracts?
Ex post?
• Laws regulating the sale of goods and service to consumers e.g.
- UK Sale of Goods and Services Act, 1982 which requires exercise of “reasonable care and skill” in delivery of services - Sale of Goods Act and implied terms - Unfair contract terms e.g. UCTA
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Cloud computing & Consumer Contracts?
Ex post?
• An important question in the context of ex post liability and implied terms is whether cloud computing is a good, service or sui generis?
• Important question regarding responsibilities for providers and rights for users
• Consumer Rights Directive - Recital 19. UK Implementation?
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Cloud computing & Consumers?
Other issues?
• Mixed use in the context of the Cloud - consumer or business? - look to initial purpose? (Consumer Rights Directive Recital 17 - UK Implementation?)
• “Free” services - same expectation as if a paying consumer?
• Using the cloud for the purpose of starting a business - consumer or business? - look to initial purpose?