Quantum computing is largely in the research and developmental stage, but its commercial use is on the horizon. Due to the high cost and technical complexity of maintaining qubits, companies and individuals likely won’t own quantum computers themselves. Instead, access will mainly come through third-party platforms offering “Quantum-Computing-as-a-Service” (QCaaS) or “Quantum-as-a-Service” (QaaS).
Similar to the Software-as-a-Service (SaaS) or Infrastructure-as-a-Services (IaaS) models, QaaS would be a remote access service model with a subscription or “pay for what you use” fee structure. The key differentiating factor with QaaS will be the underlying quantum computing infrastructure and the quantum computing algorithm. Due to the similarities between SaaS, IaaS and QaaS models, terms in a typical SaaS or IaaS agreement would be a good starting point for QaaS contracts. However, due to the experimental and volatile nature of quantum computing technology (at least initially), lawyers and legal practitioners should also consider the risks that are unique to quantum computing when drafting or negotiating a QaaS agreement:
- Hardware development and maintenance: SaaS agreements hardly ever address the underlying hardware because classical computers and servers are well-studied and have established international standards. This is not the case for quantum computing. While the underlying quantum physics theories remain the same, different QaaS providers have taken different approaches to building their quantum computers, ranging from superconducting qubits (cooling superconducting circuits to extremely low temperatures to create qubits) to ion traps (trapping ions to create qubits) to neutral atoms (trapping neutral atoms with lasers to create qubits). If the underlying hardware design is faulty or maintenance inappropriate, the value of the quantum computing services will be significantly diminished. Thus, requirements on how the quantum computers are developed and maintained may be important in a QaaS agreement.
- Errors: The qubits are subject to the no-cloning theorem which states that arbitrary unknown quantum states cannot be perfectly copied. Because quantum computers cannot make an exact copy of the quantum information created and the qubits are extremely sensitive to environmental noise, error detection and correction is a significant challenge for quantum computing. It is common for a SaaS provider to disclaim in the agreement that the services are not “error free”. But for quantum computing, an “error free” disclaimer could allow the service provider to disclaim most of the liabilities tied to the quantum computing services. Instead, customers should look for certain requirements to ensure that errors are controlled within certain parameters and that deviations are addressed by the service provider.
- Storage and record keeping: Quantum information cannot be stored in classical memory. It can only be stored in quantum memory which is error-prone and cannot persist for an extended period of time. While the industry is coming up with innovative solutions to try to address this issue (such as using topological qubits that are more stable), no quantum hard drives exist today. This unique nature of quantum computing challenges the typical SaaS provisions on audit and record keeping and raises concerns about regulatory compliance, and legal practitioners will need to account for these issues when contracting for QaaS services.
Quantum computing may still seem to be in its early stages, but the technology may quickly become a practical service with legal implications that differ from the typical SaaS services. As QaaS agreements expand, lawyers will need to develop frameworks to address the questions raised by quantum computing’s unique characteristics. Legal teams should begin drafting new provisions that can adapt to quantum capabilities and should resist the temptation to rely on contract templates designed for SaaS.
Hailey Kozuchowski also contributed to this blog post.