Click Here to Cloud: End User Issues in Cloud Computing Terms of Service Agreements - Challenges of Information Management Beyond the Cloud - page 93

or an audiovisual work (a motion picture on a DVD). In the cloud computing
environment the cloud operating software, the content a cloud service provider makes
available to users and most important to the cloud user, as well as content stored by a
user in the cloud fall often within the subject matter of copyright protection. However,
other provisions in the TOS may take away use rights that would otherwise be
available if the copyright law alone applied. In this way, contract law trumps
copyright law.
The cloud TOS also establish other operating rules governing use of the service,
including the obligations and responsibilities of each party. Moreover cloud license
provisions can further elaborate how disputes will be settled, limit damages and
otherwise reallocate risk among the parties. Often providers of web based services
including cloud space disavow any responsibility for loss of user content or accuracy
of content the provider might make available. The legal concept involved here is a
waiver of warranty. A license therefore allows the service provider to shift legal risk
entirely onto the user. Requiring users to indemnify the service provider further
accomplishes this objective, often with unintended consequences or results for the
user. Cloud computing services are not subject to negotiation and so there the user is
faced with a take-it-or-leave-it scenario of either accepting the provisions of the
license in total or foregoing use of the service. This paper analyzes the text of four
common cloud computing TOS: iCloud, OpenDrive, Dropbox and Amazon Cloud
Drive. The version of each agreement used in this assessment is that version available
to the author on Sunday May 19, 2013. Each license was analyzed in detail, provision
by provision. That analysis is too lengthy to include here but a summary table of the
most significant license variables reflected in the TOS provisions is presented at the
end of the discussion. If readers are interested in the provision-by-provision
commentary the author is able to provide that assessment upon contact.
Several questions are posed in the context of United States copyright law and
general notions of U.S. contract law. What mechanisms make such TOS binding upon
the user? Are there other unintended consequences for users such as a limitation on
other rights or imposition of burdensome obligations? Are there particular provisions
that take away rights that users would otherwise have in the absence of the TOS, i.e.,
that users would have if the transaction was subject to the copyright law? Finally, is
legal challenge to these consequences ever possible?

2 Legality: Contract Formation Issues

In the world of web site access, “use” equates with “agreement” or in contract
parlance “assent” to the terms that govern the space the same as if the user placed
their signature on a legal document. In Register.com, Inc. v. Verio, Inc. , the court
concluded that use of the Register.com search service constituted the requisite legal
assent to form a valid contract: “by proceeding to submit a WHOIS query, Verio
manifested its assent to be bound by Register.com's terms of use and a contract was
formed and subsequently breached” [1]. While web based contracts are then in theory
valid there should be an opportunity to read the TOS prior to agreement and a clear