Amazon Web Services terms of use: run far away, run fast

1) Section 3.2 on data privacy makes it clear: "We will not access or use Your Content except as necessary to maintain or provide the Service Offerings" [or if legally and lawfully compelled]

Full stop. I shouldn't have to go on to number two.

2) Section 8.1: "As between you and us, you or your licensors own all right, title and interest in and to Your Content"

Full stop again. It's pretty clear. But, hey, there's a dead horse over there, and he looks like he needs a beatin'...

3) Same section: "[with exceptions noted later] we obtain no rights under this Agreement from you our your licensors to Your Content, including intellectual property rights"

But let's go directly to his quoted section.

4) "You will not assert ... against us ... any patent infringement or any other intellectual property infringement claim regarding any Service Offerings you have used"

So, if it's not clear: you can't sue Amazon claiming that Simple Storage Service (S3) comprised a patent violation. You can't sue Amazon saying that they're violating your intellectual property rights when they serve your web page from an edge cache in Zimbabwe. They've already stated unequivocally in prior sections that they assert ZERO rights to your code/images/markup/etc ("Your Content").

How is this person practicing law?

All that quote says is "you won't sue us for your use of AWS, or claim you own AWS's IP." Seems like a standard and obvious clause.

I don't see where it says:

> With this clause, Amazon could quite literally copy any of it's customers' software, and their brands, that Amazon hosts on and displays from its servers, fold that into its Amazon Web Services offering, and call it a day.

What? That isn't what it says at all. In fact it limits the scope of the claim to "Service Offerings" which is rigidly defined.

The author seems to be struggling to read legalese and is misinterpreting it.

What leads the blogging Sean to say something like that?

Admittedly, English is not my first or even second language, but the way I read the quoted paragraph, Amazon talks only about their own IP, the Amazon AWS Service Offering and "any other product or service" provided by Amazon.

  Where do they talk about the super secret IP created by Sean Hogle?

Most concerned users on this site are startup founders or CTOs, who aren't likely to have a code of honor of any sort except for marketing purposes. So it's worth asking what the punishment is for breaking the agreement and suing them anyways.

The punishment for violating the agreement is that they can shut off your service and tell you to go away in 30 days.

So my reading is that if Amazon stole your Redshift-competitor and you sued them for copyright infringement:

* You'd win the lawsuit, because you never gave them a license to use your code.

* You'd be blackballed from AWS, banned from either using AWS or working for anyone who uses AWS. You'd have 30 days to move your product to Google Cloud or Azure.

Which seems reasonable to me.

This makes me believe that Amazon knows this clause is unenforceable or that they would lose in court if they tried to act on it.

Does that not fall squarely under malpractice, the sort of thing that lawyers usually disclaim with "IANYL"?

In particular:

1. A court would try to interpret the AWS TOS so as to give effect to all of its provisions.

2. Of the provisions that spdustin cites, [0] the important one says: "We will not access or use Your Content except as necessary to maintain or provide the Service Offerings ...." (Emphasis added.)

3. I can easily imagine an edge-case scenario: Suppose hypothetically that [i] Amazon's engineers decided that they wanted to borrow an idea or technique or method from a customer's code for use in the AWS feature set, and [ii] they came up with arguments why doing so was supposedly "necessary" to "maintain" or "provide" the Service Offerings.

4. The question would then arise: Does the term "maintain or provide the Service Offerings" encompass the making of improvements to them? Many would say "no," but that would most assuredly not be a slam dunk. Here are two arguments I would make in favor of "yes":

A. I haven't taken the time to look, but I would bet money that the term "Service Offering" is defined so that it encompasses AWS's future features as they're developed, not just the existing feature set. This would support the argument that "necessary ... to provide the Service Offerings" encompasses using Your Content to further develop the Service Offerings.

B. Enterprise-software customers usually buy maintenance as well as licenses. Traditionally, as long as you're on maintenance, you're entitled to whatever upgrades the vendor releases during your maintenance period. A court would almost certainly consider that as weighing in favor of saying that the term "maintain ... the Service Offerings" encompasses further development.

Both A and B above would weigh in favor of interpreting Section 3.2, cited by spdustin, as expressly authorizing Amazon to use Your Content in doing further development of the AWS feature set.

Arguments A and B wouldn't be a slam dunk either, in part because of the contra proferentem principle of contract interpretation, which says that other things being equal, an ambiguous contract provision will be construed in favor of the party that didn't draft the provision [1]. But it'd be an expensive proposition for an AWS subscriber to try to duke it out with Amazon on that point.

[0] https://news.ycombinator.com/item?id=11889449

[1] http://www.commondraft.org/index.html#ContraProf