homes “Cloud computing” has become a very hot topic. For the uninitiated, “cloud computing” generally refers to providing access to computer software through an Internet browser, with the software and data stored at a remote location at a “data center” or “server farm,” instead of on the computer’s hard drive or on a server located on the user’s premises. This is also referred to “software as a service.”
juegos carreras Proponents of this approach claim many benefits, including lower costs, less need for on-site support and “scalability.” “Scalability” means that the number of licenses and available resources can easily be adjusted as the need increases. Access can typically be provided to any computer with a browser and an Internet connection, but can be controlled through password protection and other measures. Proponents also argue that the cloud makes it easier to manage and push down software upgrades. Software as a service is usually provided on a fee for service approach that may result in cost savings compared to the traditional local area network. Think of it as somewhat like renting as opposed to owning.
Cloud computing is not a technology of the future, but is here today. Google, for example, uses this approach to provide its suite of business applications intended to compete with Microsoft Office. Google applications are provided free or at very little cost. Salesforce.com is one of the best known providers, providing customer relationship management (“CRM”) software to a growing list of companies. IBM and Microsoft are also entering the playing field.
real estate investing However, as shown above by the CDA’s limitation on immunity, participation in the creation or development of that user-generated content may subject the computer service provider to liability. The question, therefore, is: What is the role of the website operator?
The questions a website operator asks users, the information provided in drop-down boxes to users completing a profile, the searches and algorithms run by the website operator utilizing such data, and related considerations are all important when analyzing whether or not the CDA’s immunity applies. New court decisions are being issued on Section 230 regularly, and it is imperative that website operators understand the scope of their liability as it relates to their use of user-generated content.
As businesses and their lawyers become more experienced with cloud computing issues, it is likely that a consensus will emerge as to how cloud computing issues will be addressed. Hopefully, purveyors of cloud computing services will be flexible and reasonable in addressing legitimate business concerns. However, given the prevalence of “standard” licensing in the software field (often on a shrinkwrap or clickwrap basis) and efforts to limit liability under any circumstances, there is some cause for pessimism.
All that said, here is a list of issues that one might wish to consider asking a vendor or otherwise considering in entering into a possible cloud computing arrangement:
- What contractual obligation will you assume to protect my data? This could include reference to particular steps and procedures, including back-up obligations. The contract or license may specify a standard of care that the provider must meet.
- What contractual obligation will you assume regarding uptime, if any? Will you provide any type of uptime warranty? Even if such a warranty is subject to a limited remedy, it probably would provide considerable incentive for the provider to limit downtime.
- Most providers seem savvy enough to disclaim any interest in your data and will freely say — in a sales setting anyway — that “your data is your data.” Well, that’s good, but how do I physically get my data back at the end of the contract or if you go bankrupt?
- What remedy limitations, if any, are in your terms? Are consequential damages excluded? Are total damages capped (such as to a return of fees paid)? Even if contractual obligations are assumed, if remedies are severely limited, the provider may be shielded from liability.
- Where is my data going to be stored? Are you willing to agree that all my data will be kept in this location under specified conditions and at agreed security levels? This could be important for regulatory reasons, but also for reasons associated with meeting general customer confidentiality obligations or complying with privacy policies.
- Have you inserted a forum selection clause into the terms? Many providers want to insist on litigating on their home turf (which often, it seems, is California), but that is rarely a happy instance for a customer.
- How do I get out of this arrangement if you do not perform and what is my exit strategy? What rights do I have upon termination? What obligations do you have to assist in transitioning to a new vendor or back to a self-managed platform?
If you are considering going to the cloud, you should consider involving your business and technology lawyer early in the process. As stated, there are probably many other legal issues that have not even occurred to me. It is clear, however, that lawyers need to begin considering these issues, because cloud computing is clearly not going away You can be published without charge. You can to republish this article in your website or blog. Please provide links Active.