Consumer Drawbacks of Cloud-Delivered Content

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3 Νοε 2013 (πριν από 4 χρόνια και 1 μήνα)

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Consumer Drawbacks
of
Cloud
-
Delivered
Content

Privacy, Reliability, Security Issues

Jim Burger

Dow Lohnes PLLC

Introduction


Contractual
Issues: Privacy, Reliability,
Security


Cloud
-
Based Services
and the Fourth
Amendment


Copyright Issues in Cloud Computing


New Developments


2

Contractual Issues:
State Law


Where is data physically stored/processed?


What state law controls? E.g., CA law
provides more privacy protection


Where are your customers? E.g., EU e
-
Privacy Directive (US
-
EU Safe Harbor
Framework)

3

Contractual Issues
:
Privacy/Reliability Terms


Privacy


What are the cloud provider’s obligations to
ensure privacy of customer data?


What terms apply to third party access (e.g.,
notice)?


Reliability (SLA)


What are acceptable service levels?


Will the cloud provider have alternative services
during scheduled downtime or provide
compensatory “credit?”

4

Contractual Issues
: Security/Exit
Terms


Security/Risk


Obligations
to ensure security of customer data
?


Provider comply with national or industry
standards for data security?


Allocation of breach risk?


Cloud
provider have cyber insurance?


Exit


Exit
scenario?


Provider
obligations
to
find/transition to
alternate
provider?


5

Contractual Issues


2011 Developments


Live up to security or privacy promises or risk
litigation or FTC action.


Dropbox facing two class actions alleging it failed to
follow its own privacy and security policies.


FTC increasingly active. Recent settlements with
Twitter, Facebook, and Google for allegedly
deceptive data and/or privacy policies.

6

Cloud
-
Based
Services
and the Fourth
Amendment


Consumer expectation of privacy in the cloud?


Physical world


Constitution says: people should
be secure from unreasonable search


need a
judge to issue a warrant for your home PC


Judges confused in the digital world


But ECPA allows mere subpoena to cloud
provider to access confidential information

7

United States v. Warshak


6
th

Circuit Federal Court of Appeals declared warrantless
search of email servers unconstitutional


“…subscriber enjoys
a reasonable expectation of privacy
in the contents of emails that are stored with, or sent or
received through, a commercial
ISP”


Subscriber agreement didn’t defeat that expectation when
it stated that the ISP would only access content to protect
its own service.


But what about documents or pro
-
subpoena subscriber
agreements?

8

Copyright Issues in Cloud Computing:

Storage of User Material in Cloud
-
Based “Lockers


Capitol Records,
Inc

(EMI) v. MP3tunes:
Modest victory
for locker/cloud providers


Three important issues addressed: DMCA safe
harbor, public performance right, and secondary
infringement


MP3tunes provided a service allowing users to search
for free MP3s and “side load” these into their
lockers. EMI claimed contributory/vicarious
infringement. MP3tunes
claimed
DMCA safe harbor


9

Copyright Issues in Cloud
Computing


Viacom v.
Youtube

and
Veoh

held
locker
providers
must take down infringing
content only when
provided with specific URLs or
‘red flags’


MP3tunes
held provider
still has no obligation to
investigate general allegations of infringement;
high bar
remains for red flag


But provider obligated
to take down material
traceable
to specific
URLs


MP3tunes held not to have “red flag” knowledge



10

Copyright Issues in Cloud Computing


Cartoon Network, et al. v. CSC Holdings, Inc. (Cablevision
)
:

public performance right not infringed when provider
maintained separate copies of files stored by each user.
No
redundant files “
deduplification,” so no performance
to the public


Inefficient use of server space for locker providers


MP3tunes
: Deleting redundant data not same as using a
“master copy;” does not infringe public performance right
as long as copy played back to user is exactly same as that
uploaded by the user


Favorable holding, but inconsistent logic. How is deleting
redundant data any different from deduplifying?

11

Copyright Issues in Cloud Computing


MP3tunes out of safe harbor because failed to meet
obligation to remove files in user lockers traceable to
EMI
-
provided URLs


MP3tunes committed contributory infringement
because it knew of these files and contributed
materially to users’ infringement by failing to
terminate infringers’ accounts


Providers should be vigilant about terminating
accounts with such users


12

Conclusion


Hopefully sunrise for providing consumers
cloud computing services


But potential legal pitfalls remain


Thank you,

Jim Burger

13