Slides for talk by Prof Ian Walden, Cloud Legal Project http://bit.ly/cloudlegal at Annual Conference on European Antitrust Law 2011 - The future of European competition law
in hi-tech industries, Brussels 3-4 Mar 2011 - http://www.era.int/upload/dokumente/11873.pdf
The Codex of Business Writing Software for Real-World Solutions 2.pptx
Cloud computing - competition law issues
1. Competition i th Cl d
C titi in the Cloud
Professor Ian Walden
Institute of Computer and Communications Law
I i fC dC i i L
Centre for Commercial Law Studies, Queen Mary, University of London
Of Counsel, Baker & McKenzie
Introductory remarks
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“cloud computing can boost Europe's
competitiveness.....drastically reduce IT costs, help
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governments supply services at a lower cost to citizens and
make computing much more energy efficient.”
Commission, 3 March 2011
Competition concerns
– End-user & supply chain
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Legal responses
– Within competition law
– Other legal regimes
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2. edu
cl@ccls.e Cloud Computing
Cloud
Cl d computing provides fl ibl l
ti id flexible, location-independent access
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to computing resources that are quickly and transparently
allocated or released in response to demand.
Services (especially infrastructure) are abstracted and typically
virtualised, generally being allocated from a pool shared as a
fungible resource with other customers.
Charging is commonly on an access basis, often in proportion to
basis
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the resources used.
“X as a Service”
Software as a Service
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Platform as a Service
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Infrastructure as a Service
Communications as a Service
as a Service
and so on...
and so on...
and so on...
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3. Service Cloud
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Network Cloud
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Physical Cloud
Competition challenges
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Anti-competitive agreements
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e.g. Apple iPhone apps agreements (Sept. 2010)
Abuse of dominant position
– Market definition
From products to services
– Tying
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e.g. IBM i
investigation re: software emulations & transition
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from legacy systems
– Network effects & lock-in
e.g. Data portability & switching costs
Territoriality
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4. Standardisation
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Standards-making process
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– F
From f
formal to i f
l informal bodies
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e.g. Cloud Security Alliance, Trusted Cloud Initiative......
– EU approach
White Paper: Modernising ICT Standardisation in the EU (2009)
EC Guidelines on ‘horizontal agreements’ (2011)
Interoperability
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– IBM (1984), Microsoft (2007), Intel/McAfee....
– European Interoperability Strategy & Framework (2010)
Intellectual property rights
– On FRAND or royalty-free basis?
Public procurement
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Cloud services
Google Inc & Onix Networking v US and Softchoice
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Corp. (2011)
Re: Microsoft’s BPOS: “the DOI’s product selection of choice”
Regulated procurement
– UK Govt., Note 3/11 (31 January 2011)
Open standards: i.e. “intellectual property made irrevocably
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available on a royalty free basis”
Italian Constitutional Court, Decision Nº 122, 22.3.2010
But compliant with WTO public procurement rules?
State aid concerns
– TFEU, art. 107
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5. edu Data protection
Directive 95/46/EC
– Processing ‘personal data
personal data’
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– Review & reform
Commission Communication (Nov. 2010)
Data portability right
– Individual right to withdraw his/her own data
‘as far as technically feasible’
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– Cloud terms & conditions
Post- termination: (a) opportunity to retrieve & (b)
assurance as to deletion
– Google’s ‘Data Liberation Front’!
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Concluding remarks
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www.cloudlegal.ccls.qmul.ac.uk
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