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

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
edu
“cloud computing can boost Europe's
competitiveness.....drastically reduce IT costs, help
p y , p
cl@ccls.e
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
icc
 Legal responses
– Within competition law
– Other legal regimes
1

2. edu
cl@ccls.e Cloud Computing
Cloud
Cl d computing provides fl ibl l
ti id flexible, location-independent access
ti i d d t
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
icc
the resources used.
“X as a Service”
Software as a Service
edu
Platform as a Service
cl@ccls.e
Infrastructure as a Service
Communications as a Service
as a Service
and so on...
and so on...
and so on...
icc
2

3. Service Cloud
edu
cl@ccls.e
Network Cloud
icc
Physical Cloud
Competition challenges
edu
 Anti-competitive agreements
cl@ccls.e
 e.g. Apple iPhone apps agreements (Sept. 2010)
 Abuse of dominant position
– Market definition
 From products to services
– Tying
icc
 e.g. IBM i
investigation re: software emulations & transition
i i f l i ii
from legacy systems
– Network effects & lock-in
 e.g. Data portability & switching costs
 Territoriality
3

4. Standardisation
edu
 Standards-making process
cl@ccls.e
– F
From f
formal to i f
l informal bodies
l b di
 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
p y
icc
– IBM (1984), Microsoft (2007), Intel/McAfee....
– European Interoperability Strategy & Framework (2010)
 Intellectual property rights
– On FRAND or royalty-free basis?
Public procurement
edu
 Cloud services
 Google Inc & Onix Networking v US and Softchoice
cl@ccls.e
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
icc
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
4

5. edu Data protection
 Directive 95/46/EC
– Processing ‘personal data
personal data’
cl@ccls.e
– Review & reform
 Commission Communication (Nov. 2010)
 Data portability right
– Individual right to withdraw his/her own data
 ‘as far as technically feasible’
y
icc
– Cloud terms & conditions
 Post- termination: (a) opportunity to retrieve & (b)
assurance as to deletion
– Google’s ‘Data Liberation Front’!
edu
cl@ccls.e
Concluding remarks
icc
www.cloudlegal.ccls.qmul.ac.uk
5