Click Here to Cloud: End User Issues in Cloud Computing Terms of Service Agreements - Challenges of Information Management Beyond the Cloud - page 99

disrupt others' use of the Services.” A similar suspension or termination right appears
in the Amazon Cloud Drive TOS: “We may terminate the Agreement or restrict,
suspend or terminate your use of the Service at our discretion without notice at any
time, including if we determine that your use violates the Agreement, is improper,
substantially exceeds or differs from normal use by other users, or otherwise involves
fraud or misuse of the Service or harms our interests or those of another user of the
Service.” None of the TOS reviewed indicate the difference between termination and
suspension and in the case of suspension how long the period of suspension will last.
In general the breach of a content restriction can result in harsh action, loss of content,
termination or suspension.

3.2 A Lesson from the AOL Litigation and Enforcing Content Restrictions

While the TOS impose content and conduct restrictions on cloud users such
provisions do not vest users with enforcement rights against other users, i.e., if
another user posts “otherwise objectionable” or “abusive” content for example, a user
cannot legally force the cloud provider to remove it. In Noah v. America Online, Inc.
[6], a subscriber brought an unsuccessful claim that AOL “wrongfully refused to
prevent participants in an online chat room from posting or submitting harassing
comments that blasphemed and defamed plaintiff's Islamic religion and his co-
religionists” [7]. The claim was barred by the immunity of 47 U.S.C. § 230 because
the claim “seeks to treat AOL as the publisher of the allegedly harassing statements of
other AOL members” [8]. The court concluded that TOS provisions regarding online
comportment and civility (the AOL “Community Guidelines”) created no contractual
duty on the part of AOL, rather the “plain language of the Member Agreement makes
clear that AOL is not obligated to take any action” [9].

3.3 Risk Shifting Strategies by Cloud Service Providers

Another striking provision is the indemnification that three services (all but Dropbox)
require a user to provide to the cloud service provider. An indemnification provision
in a TOS represents the user's legal promise to compensate the provider for loss or
damage sustained by it due to the conduct of the user. As the Noah v. America Online,
Inc. decision indicates, federal statute provides immunity for any “provider or user of
an interactive computer service” from harms arising from “any information provided
by another information content provider.” 47 U.S.C. § 230(c)(1). Further, under the
copyright law, 17 U.S.C. § 512, a limitation on liability exists for infringing copyright
content posted by subscribers. All four cloud service providers are registered with the
U.S. Copyright Office as section 512 service providers with provisions, discussed
below, that reflect this status. Arguably, indemnification of the service provider by the
user is not needed. It is argued that in light of these two statutory protections an
indemnification is the legal equivalent of “overkill.” Use of an indemnification
provision is one way the cloud provider attempts to shift the legal risk of the parties.
In the absence of such provisions the law generally places risk across the responsible
parties; here most if not all of that risk is shifted onto the cloud user.