Information Technology Reference
In-Depth Information
Such disclaimers are legal, but most jurisdictions require that such disclaimers be
conspicuous, thus such disclaimers are often in bold or all capitals.
4
The Impact of Licensed Services on Copyright
Cloud computing TOS may alter the legal landscape of copyright ownership and use
rights. Particular provisions may take away rights that users would otherwise have in
the absence of the contract, i.e., rights that users would have if the transaction was
subject to the copyright law. It is not uncommon for other web-based services such as
social network sites to require that users grant the service a non-exclusive right to use
content submitted by users. [14] Such provision was not found in the four TOS
reviewed here. Moreover, the four cloud computing agreements reviewed for this
chapter ensure that a user retains the copyright in his or her content. In the future, a
service provider might decide to claim copyright ownership in the content stored by
users in the cloud it provides. In order for this to occur the TOS would need to
change. As discussed earlier all of the TOS reviewed indicate that use-equals-assent
to any changes in terms, so such changes could be easily accomplished.
In addition, each service retains the right through the processes outlined in 17
U.S.C. § 512 to remove content that is claimed to be infringing. If a user posts
content to his or her cloud space that a copyright owner claims is infringing the TOS
indicate that the service provider will follow the DMCA (Digital Millennium
Copyright Act) take-down rules. The rules are codified in 17 U.S.C. § 512. This take-
down will occur even if the content is not infringing. The protection a service
provider receives from the statute requires the content be removed or disabled
“expeditiously.” While the take-down statute provides for a process of restoration of
content or access none of the TOS reviewed alert users to the possibility of
restoration. Under the statute, a restoration request must come from the user whose
content was removed or access disabled.
The most significant loss of copyright use rights in many license agreements are
those relating to fair use. The iCloud TOS does not allow a user to “reverse engineer,
decompile, or otherwise attempt to discover the source code.” However several courts
have determined that in certain circumstance reverse engineering or decompilation of
software can be a fair use under 17 U.S.C. § 107 when it is done to determine the
unprotected elements in the software or to achieve interoperability [15] [16][17] [18].
A second right of users often curtailed through software and other licenses is known
as the right of first sale. Codified in 17 U.S.C. §109, the first sale doctrine allows the
“owner of a particular copy or phonorecord lawfully made under this title” to make a
public distribution of the copy or phonorecord without seeking permission from the
copyright owner or paying an additional fee. [19] This is the legal mechanism at play
when a user buys a book from Amazon, gives it to a friend as a gift, and after reading
the topic the friend sells it at a yard sale. After paying for the initial copy, users are
free to make subsequent distributions (the gift, the yard sale). However, as the cloud
service is made available through a license and not a sale, users do not “own” their
access to the cloud service. Ownership is a statutory prerequisite before a user can
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