Cloud Computing is an inflection point, and is the technology that enable Big Data and predictive analytics. In combination with Big Data, Social Media and Mobile Computing, it constitutes how mainstream business use Cloud

1. Social Business = Cloud + Big Data
+ Social Media + Mobile Computing
William A. Tanenbaum
Chair, Technology, Intellectual Property & Outsourcing Group
Chair, GreenTech and Sustainability Group
Kaye Scholer LLP
New York and Palo Alto Offices
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2. Overview
• Cloud + Big Data + Social Media + Mobile Computing = Social
Business
• “Cloud of Clouds”
• New outsourcing
• Sustainability in mainstream companies and in supply chains
will be IT-enabled and make use of Cloud
• Cloud vs. IT Outsourcing
• Security as a service
• BYOD to work (“bring your own device”)
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3. “Old” Business Data Aggregation
• Credit Reports
• Background Checks
• Financial industry reporting of trading activity
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4. New Data Aggregation
• What is new?
• Big Data – the three “V’s”
– Volume
– Velocity
– Variety
• Computer “horse power” to handle volume
• Unstructured as well as structured data
• Social Media as Supply Chain
– Measuring intensity
• User-provided information
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5. Hypothetical to Illustrate Key Issues
• Property management outsourcing hypothetical
• Underlying city map
• Building locations overlay
• Building interior/mechanicals overlay
• Maintenance records
• Mobile-to-Cloud
• Cloud to legacy records and vice versa
• Tenant PII
– Leave vs. service agreement
– Consent
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6. Key Issues – Continued
• Building sensors (and sensors to the Cloud)
– Wired vs. IP addresses
• Track employee location
• Real-time truck re-routing
• Monitor employee efficiency
• Determine parts inventory levels
• Supply chain coordination for just-in-time repairs
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7. Key Issues – Continued
• Customer wants historical data to evaluate maintenance and
provider performance (and number of skilled employees)
• Customer wants predictive analytics
• Customer wants real time dashboards
• Big Data needs data displays (need not be static)
• Provider wants data for fine-tuning SLA’s and pricing for future
projects and employee training
• Predictive analytics tools/algorithms
• Different levels of data roll-ups
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8. Key Issues – Continued
• Multiple outsource providers and subcontractors and IT
infrastructure providers
• Sustainability
– Make buildings and units more energy and water-efficient
– Electric vehicles
– Trucks as “Rolling Storage Units” (“RSU’s”)
– Power co-generation; solar/wind
• Portfolio of providers
• Cross-licenses
• Summary: need to know your data ecosystem
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9. Sources of Data
• Customer records
• Customer websites
• Business partners
• Third parties
• Internet tracking companies
• Social Media
• Company submissions to portals maintained supply chain
customer or jointly in an industry
– ROHS as illustrative
• Metadata
• Clouds used by employees on “BYOD”
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10. Owners vs. Licensing vs. Right of Access
• Cannot license data you do not own or in which you do not
have sufficient license rights
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11. Customer Records
• Customer records and company’s own websites
– Terms of Use and Consent
– Click-through agreements
– Challenges to enforceability
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12. Obtaining – and Proving – Consent
• Contracts of adhesion vs. expectations privacy and use
• Enforceability vs. number of screens
• How record and prove consent?
– Electronic signatures?
– E-Sign
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13. Business Partners and Third Party Data
Providers
• Anonymity
– Is it anonymous if all companies use the same encryption hash?
• Potentially an issue with health data in new health care electronic
record ecosystems
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14. Internet Tracking Companies
• Web bugs are not the current controversy
• Health care as illustrative of sensitive issues
• FDA and FTC
• Representations, Warranties and Continuing Covenants
• Indemnities; termination remedies
• Consequential damages vs. specified direct damages
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15. Social Media
• Social media as supply chain
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16. New Role for HR Outsourcing
• Problem:
– Potential HR legal liability from considering information reported on
Facebook and other social networks
• Emerging Business Solution:
– New role for Outsourcing
– Outsource providers conduct social media background checks
– Insulate HR departments
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17. Potential Outsourcing Issues
• Outsource providers retained to perform data analytics
• Results in datasets from multiple customers which can be
combined to yield valuable data asset
• Outsourcing providers directly monetize or license data to
third parties
• How can outsource customer protect against data collected
for it and data analytics on such data being used by
competitors?
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18. Customer’s Potential Solutions
• Assert ownership over data
• Assert exclusive rights over analytic tools
• Use contact to limit combination of datasets with those of
other customers, public data, or other sources of data (or
other sources)
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19. Outsourcing
• Portfolio model of outsource providers
• Need to structure to ensure data sharing
• Licensing rights back to each provider
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20. Revisiting Common NDA Provisions
• Fact Pattern: common exclusion of protection for public
domain material
• Business Problem: information technically in the public
domain needs to be maintained as private asset or protected
because of regulatory obligations
– EU PII; U.S. GLB, Health, FTC
– Non-regulatory data constitutes business intelligence
• Solution: modify public domain
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21. Competitive Intelligence
• Business Problem: Competitive information can be
inadvertently disclosed through identification in RFP’s of
subcontractors and analytics tools
• Solutions:
– Reduce scope of identification
– Early stage use of confidentiality agreements
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22. Cross-License Data Agreements
• License terms for data
• Cannot license what do not own or have license rights to
• Scope of use limitations
• Negative covenants
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23. Defensive Use of Trade Secret Protection
• Wal-Mart and Sustainability Consortium
• Reporting requirements/requests
• Can adverse information be “shielded” by trade secret?
• SEC and financial statement reporting obligations
• Is this public data?
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24. Licensing and Outsourcing Terms
• Outsourcing: Draft RFP’s to contract schedules to review by
subject matter experts
– Regulatory compliance
• For IP ownership and documentation, complete pre-agreed
upon assignment in recordable form, even if not recorded, and
record with PTO or Copyright Office when advisable
• Audit rights
• Specific data deliverables
• Data Managers
• Timely notice of data claims
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25. Questions and Answers
William A. Tanenbaum
Chair, Technology, Intellectual Property & Outsourcing Group
Chair, GreenTech and Sustainability Group
Kaye Scholer LLP, New York and Palo Alto
wtanenbaum@kayescholer.com
212-836-7661
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26. William A. Tanenbaum
wtanenbaum@kayescholer.com
William A. Tanenbaum is the international chair of Kaye Scholer’s Technology,
Intellectual Property & Outsourcing Group and its GreenTech and Sustainability
Group and works in the firm’s New York and Palo Alto offices. Chambers found
that he “built one of New York City’s most outstanding transactional IT practices,”
that he is a “well-respected attorney, with a well-informed approach [who] provides
litigation, transaction work and strategic counseling on a range of technology
issues,” that he is “efficient, solution-driven and makes excellent judgment calls,”
and that he is an “internationally recognized intellectual property, technology and
outsourcing lawyer”. He is recognized as a “Leading Individual” and was awarded
“Recommended” ratings in both “Technology and IT Outsourcing” and “Business
Process Outsourcing,” and named as a “Notable Practitioner” at the national level
in Outsourcing. He was voted one of the world’s top 250 IP strategists (IAM client
survey) and he was selected as one of the country’s top 25 pre-eminent IT
practitioners in the Best of the Best USA. He regularly advises clients on strategic
intellectual property concerns, privacy, data security, data transfer, information life
cycle management and competitive intelligence matters, in both transactional and
litigation contexts.
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27. William A. Tanenbaum (cont’d)
Mr. Tanenbaum is the founder and co-chair of PLI’s annual Outsourcing
Conference, the founder and chair of its Green Technology conference, and a
regular lecturer at industry outsourcing conferences. He chairs Kaye Scholer’s
GreenTech breakfast seminar series and presents webcasts on IT, IP and
GreenTech topics. He has contributed to Bloomberg’s Energy Sustainability Law
Report. He is a past President of the International Technology Law Association
(formerly the Computer Law Association) and is listed in Who’s Who in America,
the International Who’s Who of Business Lawyers, the Guide to the World’s
Leading Litigation Experts and the Guide to the World’s Leading Patent Law
Experts. He is the privacy and data protection columnist for the New York Law
Journal, co-author of a book on privacy law and has been quoted in The Economist
magazine as an expert on IP law. His articles have been used at Harvard and
other law schools. He graduated from Brown University (degree with highest
honors and Phi Beta Kappa) and Cornell Law School.
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