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Comment by devnonymous | Hacker News Reader

While the warning appears to be well intentioned and the paranoia understandable to me, I didn't quite understand this bit:

  > Lastly, it’s well known that AWS utilises and hosts a wide range of open
  > source code which could include viral OSS licences that might further
  > extend the reach of the IP non-assert in unforeseen and unpredictable ways.

Could someone who understood explain this ? Is that last bit just FUD ? If it is, then is the entire article FUD ?

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The license includes a provision that restricts users from asserting their patent rights against AWS licensors. When AWS uses an open source project, the project becomes an AWS licensor. The author's concern may be that the provision could extend to the contirbutors... or employers of the contributors... and so on.

This is not just FUD:

> Amazon is using the provision to defend itself in a patent infringement case brought by Appistry Inc in US district court in Seattle.

The entire article is FUD – the license is rather clear in indicating that as a condition of using AWS you promise not to bring IP lawsuits against Amazon, the duration bit is only too long if you don't read that clause all the way to the end, etc.

This is easily explained by the attribution:

“Bart Eppenauer, former chief patent counsel at Microsoft and now managing partner of law firm Shook Hardy & Bacon’s Seattle office”

A quick search leads to http://www.shb.com/news/2013/11/shook-to-open-seattle-office... which suggests that their Seattle office was founded to expand their IP practice:

“Eppenauer has served as chief patent counsel at Microsoft Corp. in Redmond, Wash., since 2003. In that role, he led the Patent Group in the Legal and Corporate Affairs Department, where he developed Microsoft’s patent portfolio of over 35,000 issued patents worldwide and managed a team of more than 100 patent professionals offering patent counseling and product development support across all of Microsoft’s business and research divisions. With extensive experience in complex, multilateral IP transactions and license agreements, Eppenauer has also worked closely with government and judicial officials, academics, and industry leaders worldwide on IP policy issues, in addition to participating in the recent passage of major U.S. patent reform legislation.”

So we have an attorney leaving a company with a track record of aggressive IP enforcement to open an IP-focused office for a law firm which does things like send people to chair conferences on monetizing IP (http://cf-conferences.com/conferences/ip-strategy-seattle-20...) telling businesses that he's deeply concerned about their ability to hire people like them to bring expensive IP lawsuits.

"The entire article is FUD – the license is rather clear in indicating that as a condition of using AWS you promise not to bring IP lawsuits against Amazon, the duration bit is only too long if you don't read that clause all the way to the end, etc."

It really isn't FUD, actually, despite the attribution.

First, You promise not to bring IP lawsuits against Amazon or it's customers, actually. Second, in fact, yes, if Amazon uses your open source (in some way that is a violation of the license), and you use AWS, you can't sue them.

Which is what the parent asked, and in fact, the clause specifically prohibits.

(Whether I like these clauses or not is another matter).

The reason I disagree with your interpretation is due to the end of the sentence: “regarding any Service Offerings you have used”. The agreement currently has these definitions:

    “Service Offerings” means the Services (including associated APIs), the AWS Content, the AWS Marks, the AWS Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content.

    “Service” means each of the web services made available by us or our affiliates, including those web services described in the Service Terms.

I'm definitely not a fan of the broad wording which Amazon uses but I would find it hard to believe that any company large enough to consider bringing a legitimate IP suit against Amazon would have trouble finding a lawyer who can come up with an argument that e.g. the open-source project which they're suing over is not part of the web services Amazon's agreement covers but rather just a component which Amazon chose, along with many other people, to use to build that service.

You can make this argument, for sure. You will almost certainly lose ;) I've seen cases where wording similar to this has been used. It was found to cover the pieces that provide the services, exactly because it is worthless as a protection otherwise. (If I can get an injunction against you stopping you from running a critical piece of your service , you won't be able to provide the service)

A lot of this would depend on the exact nature of the dispute. If this hypothetical open-source project was, say, an XML parser it'd be hard to claim that it was integral to AWS rather than an interchangeable component any more than, say, Intel hosting a microsite on S3 would give Amazon the rights to all of their processor IP. On the other hand, an AWS deployment tool or compute optimizer developed in a private beta that'd be a much harder case since Amazon could quite reasonably argue a privileged business relationship.

Right now we have one case which hasn't been settled and which apparently did involve a business partner. I think we'd need n > 1 or at least a final ruling before making the kind of sweeping claims presented originally.

An almost perfect example of an ad-hom. You've provided absolutely zero factual information about the point under discussion.

See https://news.ycombinator.com/item?id=9879188. It all comes down to whether you consider everything which has ever had a copy uploaded to AWS is included in the “each of the web services made available by us or our affiliates” definition in the license.

I don't see that term supporting the sweeping claims made in that article but you're certainly free to disagree. Ultimately I think this is somewhat moot until Amazon actually initiates action against anyone – the Appistry case was initiated by them and seems like to fail since the claims in e.g. https://www.google.com/patents/US7379959 don't appear to include anything which wasn't common HPC practice in 2002 – and we see how the courts react to it.

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