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Intellectual Property Magazine - Cloud Computing: What In-House Counsel Needs to Know

Intellectual Property Magazine asked me to write an article for their March 2011 issue. We discussed various topics and ultimately settled on the subject matter in the title of this Blog posting above. Our arrangement allows me to publish my work in my Blog. The graphics in the published article are really quite amazing. What follows is the text of my article minus the graphics:

Cloud Computing: What In-House Counsel Needs to Know

The only constant is change. I remember being at an Oktoberfest back in the late ‘80’s. My friends and I noticed a young man wearing a phone on his belt. We laughed and thought how self-important he must think he is. Well, I confess that today I do not leave the house without my Smart-Phone firmly attached to my belt. I can make and receive calls, send and receive emails, surf the net, and even take a picture if needed. The old adage “Change, embrace it” holds true in today’s technological environment. 

It is said that the speed of processing chips doubles every 18 months. There does not seem to be an end in sight in the growth in sales for the ubiquitous mobile phones. Apple’s iPad is all the rage and the Apple stores cannot keep them on the shelves. The number of applications to be written for all mobile computing devices in the coming year is staggering. So the next phase in innovation in this burgeoning IT industry is Cloud Computing. The term “Cloud” gives the concept a rather nebulous tone. Studies show the sales in the Cloud Computing marketplace have doubled in the last few years and there is no slowdown in sight. Let’s first define exactly what Cloud Computing is in order to rid ourselves of the uncertainty and then examine its advantages and disadvantages.

Cloud Computing – What is it?

Software as a Service, also known as SaaS or On-Demand, is the term most closely associated with Cloud Computing. The key word is “Service”. SaaS acts similar to a linked network of computers, or a cluster of linked networked computers, to perform different functions. This cluster of networked computers acts as a virtual supercomputer. Each person working on his or her own laptop computer is provided with the exact application they need to work and perform the tasks on their part of a project or to perform their assigned tasks in their area of work in the corporate entity. These applications are provided to that person via the internet. The user can work remotely and the applications needed are accessed by them from the internet through their web-browser. It is a seamless delivery system and it appears to the user that the applications are installed on their lap-top. The software and the data generated are not stored on the premises or the user’s own hard drive, but rather on shared servers at the vendor’s site.

What are its advantages?

The major reason usually given for Cloud Computing is that SaaS is faster to get up and running into a productive environment when compared to a full blown enterprise wide implementation and therefore a much less expensive alternative. Hand in hand with the touted speed to productivity is the claim that the enterprise can avoid the upfront capital expenditures for additional or specialized hardware that are usually required in most Enterprise Resource Planning (“ERP”) implementations. The servers are not on premises. It is a shared server array at the software vendor’s site. Since it is a service, the pricing is based on a per seat use rate and so the millions in the initial cash outlay for the software suite are non-existent. The theory is that the enterprise pays for what one uses and no more. Depending on the application, the pricing might not be exactly pay as you go, but a hybrid. The software vendor may have a subscription based pricing for the estimated number of users or hits required over a shorter period of time. This pricing model can then be adjusted as events require. Another advantage to this delivery model is that it is easily scalable and provides flexibility as projects or the enterprise at large experiences growth. Users, storage space, and upgrades to new versions and releases to the software can all be dealt with as the needs arise.

What are its disadvantages?

Security is the paramount concern. Where’s my software? Where’s my data? We have government regulations to adhere to. There are new banking regulations and new privacy rules. What about protecting non-public personal information? How do you assure me that my data does not get mixed up with another entity’s data? And the list can go on and on. 

How do we address these concerns?

Cloud Computing is inevitable. Given the centralized nature of Cloud Computing, security becomes more efficient. Instead of fighting the concept, it might be wiser to prepare for its eventual acceptance and implementation.  It is a good idea to train your IT department personnel for the change so they can have a shorter learning curve when the switch is made. One way to approach this matter is to initiate trials for your personnel by creating an innovation sandbox in the cloud. Contractually, this is the time when in-house counsel needs to lean on the “techies” on the business team. Actually both sides must feel comfortable with the solutions to the security issues. Let the business teams gather all the questions and all the means to address those concerns. Then it is the contract draftsman’s job to memorialize these areas of concern and the consequences into the contract to be signed if such matters are not met. 

The teams must agree on the specifications of how the data is to be isolated and protected. Include language that allows and mandates that the customer’s data is retrievable in a format that is desirable and safe. The ability to retrieve your data in the right format should be part of any Disaster Recovery language and the policies and procedures discussed and inserted into the contract. Your data should be backed-up periodically on a regular basis and copies of the back-ups should be stored off-site at another secure facility. Support levels and upgrades are part of the selling feature of any SaaS initiative and so these must be clearly spelled out in the contract, usually via a separate Support Schedule attached to the terms and conditions and incorporated by reference. In addition to clearly defining what is included in Support, make sure to have your team develop in conjunction with in-house counsel and the vendor’s team a Software Support Response Schedule for inclusion into the contract. Such a Response Schedule should have up-time availability percentages for the Productive System and a sufficient penalty if these availability percentages are not met. Do not be afraid to include tough penalties for failure to achieve the agreed upon up-time availability to adequately incentivize the On-Demand vendor to meet their promised availability times. These penalties usually are a dollar percentage credit to the customer’s monthly or quarterly use fees. The teams should work on clearly defining different levels of priority and the times to respond to such calls for support (e.g. Level 1 is Very High Priority due to Productive System Shutdown. Response time after reported is 1 hour).   The contract must clearly state that the vendor is SAS 70 certified and such certificate must be made available to the customer upon signing of the contract. It should go without saying, but verify that all of the promises made have been confirmed by a team from the customer by an on-site visit to the vendor’s facilities. The on-site visit should be able to confirm all the physical security claims and the policies and procedures discussed in the contract negotiations. Once the promised savings materialize due to reduced costs on maintenance and upfront costs for specialized hardware, the enterprise can use these funds and direct its efforts to more innovative ways of running the business.

Is complete surrender the only alternative?

Depending on the type of business your company is engaged in, considering the move to Cloud Computing and the nature of the data to be processed, the concerns over security might be just too high a hurdle to overcome. The new Privacy Laws and computer hacking and new government regulations sometimes present an insurmountable obstacle.  Another approach is to perform a cost benefit analysis of just certain parts of your business and the results might make the transition to Cloud Computing more palatable. On-demand service providers, another name of SaaS software vendors, are coming up with hybrid delivery approaches to Cloud Computing. If the enterprise has a myriad of smaller customer interfacing transactions at a multitude of cites, why not make use of the Cloud with all its advantages of scalability and pricing based on use while leaving the more sensitive data processed and stored on premises in a single tenancy traditional approach. This allows the enterprise to take advantage of the cost savings of using Cloud Computing while still maintaining the integrity of the more sensitive data stored on premises.

Where do we go from here?

The worldwide recession has kept the lid on software vendors raising prices. But this economic downturn cannot last forever. During this time, there has been a consolidation of software developers in the ERP industry. In April 2009 Oracle purchased Sun Microsystems. This purchase alone gave Oracle, one of the prime players in the ERP market space, access to not only Sun’s premiere hardware capabilities, but also the keys to some of Sun’s stalwart software applications, most importantly the Java programming language. Along with Oracle’s purchase of Sun came the Solaris operating system asset as well. With all the assets of the Sun Microsystems purchase, including both the software and hardware, Oracle has placed itself in a position to provide the foundation to build its SaaS and Cloud Computing services. 

SAP, who has been partnering with IBM since the late 90’s, plans on developing along with IBM a product that will facilitate the creation of an in-house cloud. SAP’s new endeavor, the “Reservoir” cloud computing project’s aim is to spread the utilization of requested applications across the enterprise’s servers thus addressing under utilization and spikes in usage.

Intel, the world’s prime chip manufacturer, purchased McAfee, a leader in network security industry. With this purchase Intel hopes to integrate security directly into the architecture of its chip. If this is accomplished, Intel’s potential to enter such new markets as network security, smart phones, and PC tablets is boundless.  

Google, purveyor of the prime search engine of choice, has recreated itself into a vendor of mobile devices, operating systems, and Cloud Computing. Other big IT players such as CISCO, IBM, and HP, now flush with cash and seeing the impending paradigm shift in the industry, have gone on a shopping spree purchasing unified communications vendors, and network security companies, and business intelligence vendors. Oddly enough all of these companies apparently are perceived as being outside of the acquirer’s original area of expertise.  

With this consolidation in the market many of the potential ERP customer’s choices will be eroded as only a handful of ERP vendors will remain. It’s a fair assumption that prices will be on the rise. Your IT budgeters should expect the need to request increases in funding for the usual items that accompany an ERP Business Suite purchase such as increased costs for support, higher rates for users, and the ever burdensome costs of a full blown enterprise wide implementation with all its foibles and miscues.   One way to counteract the consolidation in the ERP market space is to examine the alternative methods for deployment of the needed IT services. Cloud Computing, Software as a Service, a hybrid approach, or Managed Services are options your IT department should be considering. As I have discussed the insurmountable hurdles to Cloud Computing can be overcome. With the right contracting model, adequate assurances and protections, along with sufficient penalties to incentivize adherence to agreed upon terms of protection, Cloud Computing can be the viable alternative for your IT department. Change is coming. Embrace it.

Epilogue : My editor asked me to develop a “To Do” list for the readers. The graphics in the published piece consist of a yellow legal pad with the following bullet points:

To-do-list

·         When implementing cloud computing, it is a good idea to train your IT department personnel for the change so they can have a shorter learning curve when the switch is made. 

·         In addition to clearly defining what is included in support, make sure to have your team develop in conjunction with in-house counsel and the vendor’s team a software support response schedule for inclusion into the contract.

·         The contract must clearly state that the vendor is SAS 70 certified and such certificate must be made available to the customer upon signing of the contract.

·         Make use of the cloud with its advantages of scalability and pricing based on use while leaving the more sensitive data processed and stored on premises in a single tenancy traditional approach. 

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As I have discussed in several articles in this Blog, the concern over security has been a huge hurdle for most enterprises when considering whether to adopt Cloud Computing. There also is the simply reticence to change. David Needle discusses this in his article in ServerWatch entitled HP Pushes ‘Instant On’ Vision of Enterprise Cloud Services and explores an ingenious response to the resistance to change developed by HP. Perhaps the best way to describe this new development in Cloud Computing is to call it a hybrid approach. HP also offers the consulting services that will assist the enterprise to implement and manage these services. Needle’s article is peppered with quotes from Sandeep Johri, vice president of enterprise strategy and industry solutions at HP, and from a company spokesman. I think the fastest and most direct way to describe this approach and the services to implement it is to read exactly what they say about it. Here are some select quotes and you can make the determination if this could be the game-changer for the adoption of Cloud Computing:

“Part of our vision is about transforming old applications, not necessarily to the cloud, but to make them more available using new frameworks that can be accessed as a service.”

“We think the cloud needs to be more than the standard definition of on-demand services.  An enterprise needs a level of security commitments and service quality commitments, among other attributes we believe are necessary.”

"The cloud can be something you use to augment other parts of your business.  For example, for some of our airline customers we do 'ticketing as a service.' Those companies get billed on a per passenger basis and they don't get billed for servers -- the backend infrastructure is all handled by HP.

"From an instant-on perspective, an airline might just want the ticketing aspect, which we let them get right away without buying new infrastructure, but they may also want to keep a lot of other IT functions in house, and this program lets them do that."

"We do medical claims processing for 20 states in the U.S. and we get paid on a per claim basis. We process over a $100 billion in claims every year," he said. "We don't call it software as a service, but that's effectively what it is.”

And on the hybrid delivery services that implement this approach:

"This offering provides clients with a patent-pending, model-driven framework to introduce hybrid delivery concepts into their existing environments.”

"The optimal architecture for the enterprise is a hybrid architecture, not everything is moving to the cloud or staying in-house.  At the end of the day, IT needs to deliver services and some of those are best delivered in-house in a traditional single-tenancy environment, some in the cloud and some outsourced. We believe HP can bring optimization across multiple dimensions.”

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Business Objects, an SAP Company, continues its strategy of partnering with innovative companies offering Business Intelligence (“BI”) in a SaaS approach with the blessing of its parent, SAP. Its latest association is with Oco. Although both companies are players in the SMB space and both offer BI in the SaaS mode, Oco is a much smaller company. Oco’s competitive advantage comes from its development of templates for various vertical niche markets such as analytical tools and reports in the retail, industrial manufacturing, and consumer packaged goods industries. This collaboration suits both companies. SAP furthers its desire to make its products work with other vendors’ products and Oco gains an entrée to the larger SMB customer that was not previously available to them.

The BI marketplace has become extremely competitive. The main distinguishing factor for vendors in this market is to provide the products that give the enterprise the ability to make decisions faster. Business Objects’ SaaS offering, Business OnDemand, provides a fast and accurate solution. Now with the added advantage of Oco’s data discovery and mapping tool, the solutions for the SMB will come faster and at a lower cost. These partners recognize that the much larger enterprises who want their intelligence customized might not be so receptive to the Oco data model. Richard Adhikari explains in his article Business Objects Teams Up With Oco the customer first accepts Oco’s data model and this data model then finds all the data in the enterprise and produces the BI in a low cost manner.

Adhikari cites Business Objects Vice President Mani Gill, who explains the enhanced OnDemand offering this way:

Oco will let us deliver hosted multi-source data warehouses in multiple industries and functional areas.

We use our enterprise information management tools to pull data from customers, host it ourselves and provide business intelligence on top.

For a fuller explanation see Adhikari’s article. He points out that the combination of these two vendors additionally benefits both by allowing Oco to become a reseller of Business Objects products and permitting Business Objects yet another opportunity to differentiate itself and gain a foothold in this market space.

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There is a revolution of sorts going on in the computing world. I do not want to over-dramatize this fact; however I am reminded of author and pamphleteer Thomas Pain who wrote:

• “Lead, follow, or get out of the way”
• “These are the times that try men’s souls”
• “The harder the conflict, the more glorious the triumph” (yes, this is drama)

Why all the drama? Well, I recommend you read Tien Tzuo’s article entitled The Global Transformation to On-Demand. Tzuo’s subtitle may aid in understanding my reference to the drama (i.e. “Why the world is moving to subscriptions and what it means for businesses”). This article should be read in conjunction with Daniel Druker’s article Different is hard: SAP - (Not Too Much) Business by Design.

Let’s start with Tzuo’s rather succinct history of the change in the paradigm from on-premises computing to subscription buying via the internet. Tzuo was on the cusp of the wave that brought in the SaaS business model. The guiding ideology for Tzuo and his contemporaries regarding SaaS is that

“ … software belonged on the Internet, not on a CD, and in that process it is transformed from a product that you buy to a service that you subscribe to.”

Tzuo’s analysis of why the trend towards subscriptions (i.e. On Demand or SaaS) rather than the traditional purchase or licensing model covers a broader spectrum than just the software industry. He explains that the internet has transformed the way people buy. The purchaser now has more options from more packages and as their needs change so can their subscription. Buyer’s remorse is eliminated.

“no large up front investment, no ongoing maintenance costs or hassles, no insurance costs – just pay for how much you use.”

Tzuo points out that there are significant differences between the processes for managing a subscription business versus the traditional product for sale business. These differences are:

• The ability to offer your product in parts, as well as full packages
• Invoicing and payment terms must be able to track the flexibility in the product offerings
• There are constant changes in the subscription and the revenue collection process becomes convoluted
• The metrics for this type of business differ from the usual billing metrics and so the ability to measure success and redirect efforts must adapt

The difficulties in managing a subscription business can be demonstrated by reference to the current situation at SAP and its announced delays and reduction in investment in its hoped for SaaS offering, Business by Design. Daniel Druker presents an in-depth analysis to the possible problems facing SAP. He lays out the trials and tribulations that a mega-corporation must face when trying to adapt to the changes in the industry. Instead of the purported technical issues facing this new service such as the “Mega-tenancy” model that a company the size of SAP is trying to implement, Druker sees the problem as the age-old issue of resistance to change. He labels this the “innovators dilemma”. The best and the brightest personnel shun the new innovation, especially if the promise of returns is far removed from the fundamental business model. It almost seems as though the company sets up its own barriers. A matrix organization, such as SAP, organized by country or region, is more inclined to focus on hitting their sales goals for the quarter or month and less likely to assist in the latest project.

In addition to the innovators dilemma, Druker also includes a discussion much like Tzuo’s differences between a subscription run business and that of the traditional product driven business model. Simply put, the business processes needed to run a subscription business do not yet exist, and when these new business processes do come on line, they will be incompatible with the existing business processes for a large enterprise software company.

Druker concludes by stating that, “SAP is an amazing, well run company”. It remains to be seen how well they will manage this latest innovation in the computing world.

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