In Part I: It's Clouds' Illusions I recall, we looked at the different cloud service offerings and some potential security concerns, or at least considerations. In this post, we will focus specifically on ownership of your data, as this should be your greatest concern when using a cloud provider.
As mentioned previously, you want to be sure to carefully read the Terms of Use or Terms of Service of the cloud service provider before engaging their services, as this is the contract between you and them for your use of their service and their use of your data, photographs, graphics, videos, reports, etc. (your "content"). The absolute first provision you should look for in the Terms of Service is who owns your data. If the Terms answer this question with anything other than a resounding "YOU", do not click to accept the Terms, do not pass go, and most definitely do not sign up for that cloud provider's service. There is no reason a cloud provider needs ownership of your content to provide you their service, nor should you be willing to turn over ownership of your creation for anything less than its full value.
Although Terms of Service that assume ownership of your content are rumored to exist, I have yet to come across one. Thus, it is likely the cloud service provider will acknowledge your ownership in the content you provide. The following is an example of a data ownership clause recognizing your content ownership:
You retain copyright and any other rights you already hold in Content which you submit, share, upload, post or display on or through, the Service. By submitting, sharing, uploading, posting or displaying the Content you give Google a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, share, upload, post or display on or through the Service for the sole purpose of enabling Google to provide you with the Service in accordance with the Google Docs Privacy Policy.
The above language was taken verbatim from the Terms of Service for Google Docs, Google's document management service. This clause is typical of what you should expect to see in a Terms of Service. You retain any ownership in your content, but license the cloud service provider to use your content for the sole purpose of providing you their service. This is extremely reasonable, and even necessary. Google Doc's document management and creation service would be useless if I did not permit Google to store or display my information.
However, the license you grant to the cloud service provider in the Terms of Service should be for the sole purpose of providing you whatever service they offer. This covers any legitimate use of your content. Any other purpose involves a misuse of your information. Consider the Terms below released by Facebook in 2009:
You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof. [emphasis mine]
The underlined portions of the above Terms allows Facebook to use your content for any purpose. In accordance with this provision, Facebook could sell your information, use it in any commercials or ads, or even distribute your photo to everyone, everywhere, at any time, for no reason.
Fortunately, enough Facebook users read this change to the Terms of Service and demanded Facebook rescind the provision. But imagine if they had not...your Facebook photos might show up in some unwanted places. Thus, reviewing the cloud service provider's terms regarding your continued ownership of your content as well as their licensed use of your content is essential.
Other terms affecting control of the content you will want to pay particular attention to are:
- advertising. As observed in the Facebook example above, do the terms grant the cloud service provider the right to use your content in their advertising? Can they broadcast to the public you are a promoter of their service without your written permission?
- In what instances will they turn over your data to a third party, including the authorities? Do they require a court order or subpoena for your content first? (note: they should.)
- termination. If you cease using the cloud provider's service, there is no reason for the provider to retain your content. Thus, when you terminate the agreement to use their service, 1) you also terminate the license you granted the provider to use your content, and 2) the provider should delete any content you provided from its servers. Anything else is unacceptable.
Real World Application
We are all guilty of quickly browsing an online Terms of Use or Terms of Service Agreement and clicking "accept" before we have a thorough understanding of each term. However, to avoid a costly and potentially devastating mistake, always understand 1) who owns your content, and 2) how it can be used, before you agree to anything. Failure to do so could get you in a lot of trouble, especially if your content contains information of your customers, partners, employees or other third parties. Most Terms of Service Agreements are written in plain English, so hiring an attorney is probably not necessary. However, don't be afraid to contact the cloud service provider and ask them to provide an explanation of any ambiguities in writing.
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