Two of the most important developments of this new century are the emergence of Cloud Computing and Big Data. However, the uncertainties surrounding the failure of Cloud service providers to clearly assert “ownership” rights of data and databases during Cloud Computing transactions and Big Data services have been perceived as imposing legal risks and transaction costs. This is also slowing down the capacity of the Internet market to thrive. “Click-through” agreements drafted on a “take it or leave it” basis govern the current state of the art and they do not allow much room for negotiation. This thesis proffers a new contractual model advocating the extension of the negotiation capabilities of cloud customers, enabling thus an automated and machine-readable framework, orchestrated by a “Cloud broker”. Cloud Computing and Big Data are constantly evolving and transforming into new paradigms where Cloud brokers are predicted to play a vital role as “innovation intermediaries” adding extra value to the entire life cycle. This work situates the theories of law and economics and behavioral law and economics in the context of Cloud Computing and takes database rights and “ownership” rights of data as canonical examples to represent the problem of collecting, outsourcing and sharing data and databases at the global scale. It does this by highlighting the legal constraints concerning “ownership” rights of data and databases, and proposes to find a solution outside the boundaries and limitations of the law. By allowing cloud brokers to establish themself in the market as entities coordinating and actively engaging in the negotiation of Service Level Agreements (SLAs), individual customers and Small Medium-sized Enterprises (SMEs) could efficiently and effortlessly choose a Cloud provider that best suits their needs. This approach, called “Plan-like Architectures”, pursuits to create a more trustworthy Cloud Computing environment and yield radical new results for the development of the Cloud Computing and Big Data market.
This thesis advances a number of theoretical and practical alternatives to the field of IT & IP Law. Below some of the salient points emanating from this research are summarized:
1. Cloud Brokerage Services: The figure of innovation intermediary (or “broker”) as a middleman can aid to better streamline and clarify legal issues by simplifying the decision-making process.
2. Automated and Flexible SLAs: SLAs shall provide for a more simple, efficient and flexible approach. This includes application tools that allow for an automated procedure to select and re-negotiate SLA offers.
3. Plan-like Architectures: This approach will depend on how choices are framed. On this account, the technical implementation of default rules, warning signals and information disclosures are very efficient as prime nudges.
4. Risk Assessment and Trustworthy Framework: A risk assessment framework should include database rights and “ownership” rights of data. This tool ought to be implemented within the architectural design at all stages of the life cycle. This approach can be realized to reduce risks and engender greater mutual trust within cloud transactions.
