April 25, 2012: I've now updated this post with a fresh look at the terms of service for Apple, Google, Dropbox, Microsoft, and more. Get the latest here: Your data, your rights: how fair are online storage services?
Call me crazy, but I actually read license agreements, privacy policies, and terms of service. Not obsessively, but regularly.
Given the recent surge of interest in cloud services, I thought it would be useful to look at the TOS for each of the major cloud-based services. Just what rights do you grant (and give up) when you upload files to a cloud-based service? In this post, I look at the TOS for Amazon Web Services, Box.net, Dropbox, Google, Microsoft Windows Live (including SkyDrive), and SugarSync. I also included the TOS for Apple’s MobileMe service. MobileMe will be replaced this fall by iCloud, but terms for the iCloud service are not yet available.
Of course, legal documents aren’t a be-all and end-all. A company’s behavior is equally important, especially when that record is consistent and formed over a long period of time. But knowing what a service can do with your files is a crucial bit of information when you’re formulating strategies to keep personal and confidential information secure.
This topic takes on a special interest in the wake of this week’s dustup over the Dropbox Terms of Service. A revision published on July 1 originally contained this jaw-dropping paragraph:
By submitting your stuff to the Services, you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent reasonably necessary for the Service.
Before you dismiss that as mere boilerplate language, read Ben Schorr’s excellent analysis of the new TOS:
Even the botox fanatics among you should have a raised eyebrow at this point. The very words "distribute" and "publicly display" should be all you really need to hear.
Now some of you are saying "Oh, sure, the agreement says that but they won't really DO it." Fair enough. Many of you reading this are lawyers (I know my audience), would you encourage your client to sign an agreement that says the other side has the right to do something onerous with the caveat that "I know it says they're allowed to do it, but they won't really do it." This agreement gives them permission to do it. Do you take their word that they won't? Up to you.
Within days, Dropbox revised its TOS again, adding a clarifying sentence: "This license is solely to enable us to technically administer, display, and operate the Services." But the damage had already been done.
Update: See Ben Schorr's follow-up post: Dropbox Kisses and Makes Up? Money quote: "So...is it all better now? Can we go back to cuddling up with Dropbox and put our worries behind us? Well...no." But do read the whole thing.
My question is how similar these terms are to other services, so I went out and snipped the relevant sections from the terms for each service. I’m not a lawyer, so I won’t try to draw any legal conclusions. But it is clear that the key players differ significantly in the wording they use in these important documents, which in turn offers a clue as to where you fit in their business model.
See for yourself, and follow the links if you want to read in full. Companies are listed in alphabetical order, beginning on the next page:
See the previous page for the context under which these excerpts were collected. All text is a direct copy as of July 3, 2011. It is possible, indeed likely, that companies listed here will change these terms in the future. Do not rely on these excerpts to make any decisions without consulting the current terms and getting your own, independent legal advice.
8.1 Your Content. As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service Offerings to you and any End Users. We may disclose Your Content to provide the Service Offerings to you or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).
7. Content Submitted or Made Available by You on the Service
License from You
Except for material we may license to you, Apple does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. Said license will terminate within a commercially reasonable time after you or Apple remove such Content from the public area. By submitting or posting such Content on areas of the Service that are accessible by the public, you are representing that you are the owner of such material and/or have authorization to distribute it.
D. USER CONDUCT/ACCEPTABLE USE POLICY.
To the extent that the Services provide Users an opportunity to store and exchange information, materials, data, files, programs, ideas and opinions (“User Content”), you hereby represent and warrant that you have all necessary rights in and to all User Content you provide and all information contained therein. By registering to use the Services, you understand and acknowledge that Box.net and its contractors retain an irrevocable, royalty-free, worldwide license to use, copy, and publicly display such content for the sole purpose of providing to you the Services for which you have registered. In the event that you give Box.net the right to distribute your content, additional terms may apply to Box.net's usage or distribution of this content. You continue to retain all ownership rights in any User Content you provide and shall remain solely responsible for your conduct, your User Content, and any material or information transmitted to other Users for interaction with other Users. Box.net does not claim any ownership rights in any User Content. [boldface in original]
11. Content license from you
11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.
11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.
5. Your Content
You control who may access your content. If you share content in public areas of the service or in shared areas available to others you've chosen, then you agree that anyone you've shared content with may use that content. When you give others access to your content on the service, you grant them free, nonexclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the content solely in connection with the service and other products and services made available by Microsoft. If you don't want others to have those rights, don't use the service to share your content.
You understand that Microsoft may need, and you hereby grant Microsoft the right, to use, modify, adapt, reproduce, distribute, and display content posted on the service solely to the extent necessary to provide the service.
File Sync, Storage and Confidentiality
After setting up your account and downloading our Software, you can select the Files you want to sync and/or store. You can change the Files you want to sync or store whenever you want. In order to make the Service available to you, we need your permission to sync and store your Files. Accordingly, you hereby grant to SugarSync a license: (i) to use, copy, transmit, distribute, store and cache Files that you choose to sync and/or store; and (ii) to copy, transmit, publish, and distribute to others the Files as you designate, whether through the sharing or public linking features of the Service, in each case solely to provide the Service to you.
Besides iCloud, are there any significant services I missed?