37
machines are cited as common examples. In the mid-nineties, Szabo
(1996) envisioned a computerised transaction protocol that implements
the terms of a contract. While Szabo (1996) foresaw self-enforcing contracts based on conditions being met, Blockchain addressed a number of
issues in smart contracts, and contracts more generally, not least the verifiability of conditions and performance. In the language of trust, Blockchain
verifies integrity. Blockchain has been proposed as a solution to a number
of cloud-related contract issues including verifiability of performance
(Dong et al. 2017), GDPR compliance (Corrales et al. 2019), and digital
rights management (Finck and Moscon 2019). Despite the benefits of
smart contracts, significant questions remain unanswered regarding their
enforceability (Savelyev 2017). Indeed, the extent to which either smart
contracts or intellectual contracts can be easily adapted and integrated in
to current contract law frameworks, or indeed need to, is open to debate.
2.6
concLusIon
This chapter provides an overview of some of the key contract law issues
that arise in cloud computing. It is not exhaustive. It is clear that contracts
in cloud computing are used primarily as an instrument of control and, to
a lesser extent, coordination. While larger commercial and governmental
organisations, may make rational choices based on calculus-based trust in
full knowledge of the contract they are entering in to, it is clear that for the
vast majority of firms do not have the opportunity or bargaining power to
negotiate with cloud service providers. A rational, albeit disadvantageous
decision, to either ‘take it or leave it’, remains. Given the homogeneous
nature of cloud computing terms and conditions and the dominance of a
small number of hyperscale players in the public cloud market, organisations, and particularly smaller ones, are left on the poorer side of a onesided power relationship. While CSPs may possess undeniable competence,
this imbalanced relationship does not foster trust. The evidence of the
terms and conditions reviewed in this chapter suggest CSPs are not benevolent and their integrity can only be judged on their post hoc performance.
Based on their approaches to limitation of liability, warranties, compensation, amongst others, one could understand how firms might tend towards
scepticism. Such scepticism or lack of trust need not be a negative, it may
be constructive resulting in enterprise customers developing healthy vigilance behaviours e.g. increasing monitoring, ensuring compliance, and
preventing potential exploitation (Lumineau, 2017).
2 DEAR CLOUD, I THINK WE HAVE TRUST ISSUES: CLOUD COMPUTING…
machines are cited as common examples. In the mid-nineties, Szabo
(1996) envisioned a computerised transaction protocol that implements
the terms of a contract. While Szabo (1996) foresaw self-enforcing contracts based on conditions being met, Blockchain addressed a number of
issues in smart contracts, and contracts more generally, not least the verifiability of conditions and performance. In the language of trust, Blockchain
verifies integrity. Blockchain has been proposed as a solution to a number
of cloud-related contract issues including verifiability of performance
(Dong et al. 2017), GDPR compliance (Corrales et al. 2019), and digital
rights management (Finck and Moscon 2019). Despite the benefits of
smart contracts, significant questions remain unanswered regarding their
enforceability (Savelyev 2017). Indeed, the extent to which either smart
contracts or intellectual contracts can be easily adapted and integrated in
to current contract law frameworks, or indeed need to, is open to debate.
2.6
concLusIon
This chapter provides an overview of some of the key contract law issues
that arise in cloud computing. It is not exhaustive. It is clear that contracts
in cloud computing are used primarily as an instrument of control and, to
a lesser extent, coordination. While larger commercial and governmental
organisations, may make rational choices based on calculus-based trust in
full knowledge of the contract they are entering in to, it is clear that for the
vast majority of firms do not have the opportunity or bargaining power to
negotiate with cloud service providers. A rational, albeit disadvantageous
decision, to either ‘take it or leave it’, remains. Given the homogeneous
nature of cloud computing terms and conditions and the dominance of a
small number of hyperscale players in the public cloud market, organisations, and particularly smaller ones, are left on the poorer side of a onesided power relationship. While CSPs may possess undeniable competence,
this imbalanced relationship does not foster trust. The evidence of the
terms and conditions reviewed in this chapter suggest CSPs are not benevolent and their integrity can only be judged on their post hoc performance.
Based on their approaches to limitation of liability, warranties, compensation, amongst others, one could understand how firms might tend towards
scepticism. Such scepticism or lack of trust need not be a negative, it may
be constructive resulting in enterprise customers developing healthy vigilance behaviours e.g. increasing monitoring, ensuring compliance, and
preventing potential exploitation (Lumineau, 2017).
2 DEAR CLOUD, I THINK WE HAVE TRUST ISSUES: CLOUD COMPUTING…