Social Business = Cloud + Big Data + Social Media + Mobile ComputingSocial 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
60758855.pptx
60758855.pptx
OverviewOverview
• 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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“Old” Business Data Aggregation“Old” Business Data Aggregation
• Credit Reports
• Background Checks
• Financial industry reporting of trading activity
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New Data AggregationNew 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 4
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Hypothetical to Illustrate Key Issues 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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Key Issues – ContinuedKey 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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Key Issues – Continued 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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Key Issues – Continued 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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Sources of Data 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” 9
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Owners vs. Licensing vs. Right of Access 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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Customer Records Customer Records
• Customer records and company’s own websites
– Terms of Use and Consent
– Click-through agreements
– Challenges to enforceability
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Obtaining – and Proving – Consent 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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Business Partners and Third Party Data Providers 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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Internet Tracking Companies 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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Social Media Social Media
• Social media as supply chain
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New Role for HR OutsourcingNew 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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Potential Outsourcing Issues 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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Customer’s Potential Solutions 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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Outsourcing Outsourcing
• Portfolio model of outsource providers
• Need to structure to ensure data sharing
• Licensing rights back to each provider
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Revisiting Common NDA ProvisionsRevisiting 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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Competitive Intelligence 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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Cross-License Data Agreements 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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Defensive Use of Trade Secret ProtectionDefensive 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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Licensing and Outsourcing TermsLicensing 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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60758855.pptx
Questions and Answers 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
212-836-7661
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60758855.pptx
William A. [email protected] A. [email protected]
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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William A. Tanenbaum (cont’d)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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Copyright ©2011 by Kaye Scholer LLP. All Rights Reserved. This publication is intended as a general guide only. It does not contain a general legal analysis or constitute an opinion of Kaye Scholer LLP or any member of the firm on legal issues described. It is recommended that readers not rely on this general guide in structuring individual transactions but that professional advice be sought in connection with individual transactions. References herein to “Kaye Scholer LLP & Affiliates,” “Kaye Scholer,” “Kaye Scholer LLP,” “the firm” and terms of similar import refer to Kaye Scholer LLP and its affiliates operating in various jurisdictions.
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