What Happens in the Cloud: Software as a Service and Copyrights

Abstract

What happens in the cloud? Copyright owners are concerned. Users of cloud services upload, share, and download copies of software and other files without their owners’ permission and access copyrighted works beyond or in violation of access limitations. Also, copyright owners find it hard to keep up with initiatives of cloud service providers, which constantly introduce new technologies that make copyrighted works available in new formats and business models. What happens in the cloud stays in the cloud. In the cloud, software is no longer commercialized by distributing physical copies to users. Instead, users remotely access and use software copies that remain on the cloud provider’s servers. Software copies stay in the cloud. This raises questions as to if and how copyright law protects the interests of software copyright owners, users, and the public in the cloud. Answering such questions requires an understanding of exactly what happens in the cloud in terms of copying software. This is the focus of the Article. Although cloud offerings are often global and multi-jurisdictional, the copyright laws governing the services remain territorial and national. This Article examines primarily U.S. copyright law, which applies where companies have been most innovative and active in developing cloud offerings, but also briefly takes a look at copyright laws in the EU, the second most developed and active jurisdiction with respect to software copyrights. After Part I provides a general introduction to the topic, Part II gives a technological overview. Part III assesses in detail when and how the exclusive statutory rights under U.S. copyright law are implicated in a number of typical software-as-a-service scenarios. Part IV analyses the same scenarios under copyright laws in Europe for comparison purposes. Part V briefly looks at the complexities of cross-border scenarios and Part VI concludes with an outlook regarding potential legal and policy implications of what happens in the cloud to software copies. © 2014 Lothar Determann. † Lothar Determann teaches computer, Internet, and data privacy law at Freie Universitat Berlin, University of California, Berkeley School of Law, and Hastings College of the Law, San Francisco and practices technology law as a partner with Baker & McKenzie LLP, admitted in California and Germany. The Author thanks Bruce Perens for contributions and explanations on technical details, his partner Ben Allgrove (Baker & McKenzie, London) for comments on EU and U.K. copyright law, and Helena Engfeldt for assistance with research and edits. As with all articles, opinions expressed are those of the Author only, not his firm’s, clients’, or others’. 1096 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1095