RIGHTS IN THE CLOUD

Did Santa leave an iPhone 4S in your Christmas stocking or an iPad under the tree for you? Did you spend Boxing Day registering with MobileMe and iCloud? I did and whilst waiting for my devices to be registered and inventing ‘strong’ and memorable passwords, I began to wonder about who owns the cloud and legally speaking, who owns and is responsible for the content it contains?

As I looked into this, the answer became more complicated, but using iCloud and iTunes as examples I’ll try to explain.

Apple owns ‘the cloud’ and by this I mean the technology that uploads, streams and pushes the content to you. Apple also owns the physical hardware that runs the cloud ‘service’ and though I’m not sure, I’d like to think that somewhere deep underground in Cupertino there’s a cavernous hall racked with spotless white Macs gently humming with billions of iTunes tracks. Although Apple is responsible for storing your content, be warned that it accepts no liability for loss of it and its Ts & Cs remind you that you are responsible for backing up and managing your own content. In this respect, other companies who offer forms of cloud computing ranging from data storage to business services probably own their own ‘clouds’ too, and provide that the content remains your property and your responsibility.

As a business user, beware of the terms relating to transfer of data from one cloud service provider to another. Some less scrupulous providers may try to retain your business by claiming ownership of the information you store, jeopardising your data if you should try to move to a different cloud source. On a related point, it is worth checking the terms and conditions before you upload content, in case the cloud space actually belongs to a third party that you ultimately have no contractual connection with.

Back to iTunes: The music, film or programme you download to your device comprises a complex arrangement of artists, producers, record, film or TV company rights so of course you never ‘own’ it, rather you buy a license to use it indefinitely across a range of devices. There are certain restrictions in your license which are intended to provide reasonable useage under the Law whilst guarding against exploitation.  When you then upload your music to the iCloud or it is pushed back to your device, there is no change in ownership of it or in the terms of your license to use it.

Having grappled with cloud content ownership, I have two points of caution for the business users of cloud services: First, with any remote service, the supplier puts the responsibility to back up content firmly on you and disclaims most liability for loss of information you upload or stream back, so check your time machine and make space in your time capsule! Secondly, in respect of MobileMe in particular, the Ts&Cs grants Apple a worldwide, non-exclusive, royalty free license to use content for certain purposes, so if it’s private or commercially sensitive consider another means of sharing it and if it’s your copyright work be sure to state this clearly and indelibly.

As you can imagine, with thorny rights issues like this to ponder, the winter nights just fly by for intellectual property lawyers. Now, if I could just remember my passwords…

For intellectual property advice contact jef@jgrlaw.co.uk

Jan 2012

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