Terry Jones

I’ve spent many hours reading about Amazon’s S3 and EC2 services since they were announced. They’re certainly very attractive, and they are being put to heavy use by many companies. There’s a list of examples over on O’Reilly Radar. Don MacAskill of SmugMug gave a great talk at ETech about SmugMug’s use of S3. SmugMug have something like 200TB in storage at S3.

I think S3 and EC2 are fantastic and innovative offerings from Amazon. I’d love to use them for my own project.

But if you read the Web Services Licensing Agreement, it’s quite worrying. Or at least it should be worrying for anyone whose potentially S3/EC2-reliant service may one day rub Amazon the wrong way.

Here are a few extracts:

5. You agree to provide such additional information and/or other materials related to your Application as reasonably requested by us or our affiliates to verify your compliance with this Agreement.

What does “other materials” include? Source code?

If your Application is available as an online solution, you acknowledge and agree that we (and/or our affiliates) may crawl or otherwise monitor your Application for the purpose of verifying your compliance with this Agreement, and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we and/or our affiliates may use technical means to overcome any methods used on your Application to block or interfere with such crawling or monitoring).

“Otherwise monitor” is pretty creepy and all-encompassing. I’m supposed to give Amazon blanket permission to monitor my service in any way they choose? I think it’s fair enough for them to reserve the right and means to verify that I’m in accordance with the agreed T&C, but the above language is…. well, see below.

If your Application is a desktop solution, you agree to furnish a copy of your Application upon request for the purpose of verifying your compliance with this Agreement.

What does this mean? Source code?

And then we get to the real kicker:

8) If your Application is determined (for any reason or no reason at all, in our sole discretion) to be unsuitable for Amazon Web Services, we may suspend your access to Amazon Web Services or terminate this Agreement at any time, without notice.

Wow.

But big net-and-web-friendly Amazon, they wouldn’t just pull the plug on something they didn’t like. Would they? The experience of Zlio might make you wonder, as might the experience of Alexaholic Statsaholic.

From what little I know of those two cases, I don’t see a reason to condemn Amazon. But they do give pause, and section 8 of the T&C is frightening. There’s more in the agreement that I find vague (just what is an Amazon Property?), but that’s enough examples for now.

IANAL, but I’ve worked on and negotiated dozens of contracts. What we have here is a contract for services drawn up by the lawyers of just one party. This is the kind of shot across the bows you can take when your side gets to draft the contract, and it inevitably comes back with Unacceptable or Rejected all over the place, especially when you’ve egregriously over-reached. You know you’re over-reaching, of course. You get to frame the terms of the contract, which is why it’s so nice to do the first draft.

And yes, OK, Amazon is offering a service, they can define the price and the T&C as they see fit, and you can like it or lump it. But there’s another way, which is to push back a little.

S3 and EC2, and most likely future Amazon offerings, are important. They change a lot and they deserve to be widely used. It’s worth fighting about because they’re so great, because the T&C could be fixed, and because drafters of contractual terms like these expect you to push back.

Potential customers shouldn’t have to worry that Amazon might cut them off without warning and without reason. We should instead speak up and push for a better deal. Because right now the terms of the deal are totally one-sided. Amazon are big enough and mature enough and smart enough to know that it’s in their interests to make S3, EC2 and the rest of their web services as big as possible, and of course they know that their T&C are over-reaching.

If you’re building something that Amazon may one day decide they don’t like, or that they want to compete with, I’d be careful about using S3 or EC2. What if Amazon come along one day and offer to buy you for a deliberately lowball price—or else? What if [insert evil villain] calls up Jeff Bezos one day and makes a deal to have your service cut off? That’s going to be totally opaque to you, and you have no recourse. What if Amazon is bought by XXX, who then decide to cut you off? This may all sound farfetched, but these sorts of things do happen.

Comment #2 on the Zlio RW/W page I referenced above makes an important point. Amazon’s platform is akin to an operating system on which services can be built. Amazon promotes it like a platform. But they reserve the right to dump you unceremoniously, without notice, and without reason. Come on Amazon! We may be fragile startups dying to use your services, but we’re not idiots. If you want to build a platform and have people use it, do it properly. Otherwise, you’re just reserving the right to act like Microsoft after they finally woke up and realized that they could write applications for their OS too, and proceeded to use ugly means to wipe out competitors – to their ongoing and deserved detriment. But even Microsoft didn’t have an EULA that said they could take the OS away from you any time they felt like it.

Given a choice between Amazon cutting the price on S3 again and having them revise their T&C, I’d much rather the latter. But if we all silently accept their T&C, there’s no reason for them to revisit.

A few small changes could make Amazon’s web services irresistible.

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