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Digital Assets on death
Bruce Willis vs Apple Article(If you want to see my piece about this in
In making plans for who inherits what on his death, Bruce Willis has stumbled upon a problem with the digitalage; whilst he can leave his physical assets to his children, things are not so clear cut when it comes to leavinghis digital assets. As a result of the shift to digital, instead of amassing collections of CDs (and for some of us vinyl), DVDs andpaperbacks, we now spend, a not insignificant sum of money each year, buying the equivalent in digital format.The expectation is that like our collection of CDs, we will be able to leave the digital content that we bought toour heirs. But can we really? What becomes of our digital music, films and books when we die?When we buy our digital content (e.g. music, e-books, films) we are not buying physical ownership of thosedigital files, to do with as we like. Instead, according to the terms of most services like Apple and Amazon, whatwe
are ‘buying’ is a personal right
to use the content, subject to a number of restrictions. So, for example, wemight be restricted to using the content on a particular device or restricted from being able to copy it more thana certain number of times and then only to certain authorised devices. Typically, we are also restricted fromtransferring the right that we purchased t
o another person. And that’s where the
potential problem lies... As the right is personal to us and cannot be transferred, there is a question about whether we can legallytransfer our digital files and leave them to our heirs or whether our collections of digital content expire on ourdeath.
Unfortunately, service providers’
terms and conditions
don’t help to clear up this ambiguity; most are
silent on the point.Of course, in practical terms we could get round the problem by leaving our device on which our content isloaded to our heir. That however, still supposes that the heir can get access to any linked accounts (e.g. your i-Tunes account), in order to receive updates etc. (Note that some online terms of service may prevent you fromtransferring accounts to other people). In legal terms, however, you are still left with the problem that it mightbe illegal for your heir to use the content that is on your device.
So what’s the solution? It’s clearly in Apple and Amazon’s (and the content owners’)
best interests to solve thisproblem. The starting point has got to be that the consumer needs
to understand what they’re paying for. So
when people download a song, they know whether they own it or are just renting it for their lifetime or for someshorter period.
After all, when you rent a car, you know you haven’t bought it. But if in the case of digitalcontent, it’s a ‘download to own’ purchase, consumers will expect to treat their music collection like their physical
possessions. That way when it comes to making a will, they know what they can do with both. A failure from the service providers to tackle this subject is only likely to lead to more regulation.
But they can’t
solve the problem alone because it is not their content. It is licensed to them by rights owners and theircollecting societies. So any solution requires their participation as well. In a digital world in which the
transaction is a grant of rights, and not the sale of goods, it’s essential that rights owners don’t lose
control overlicence terms. That said, the terms have to take account the changing nature
of consumers’ digital
legacies.From a UK perspective, there is currently a lack of legal framework for dealing with this. The closest court rulingwhich might be of help is a case in which the European Court of Justice ruled that software could be re-sold,despite one of the terms of its licence, which said that the software was not transferable. Although this does notaddress squarely the issue of transferability when it comes to inheritance; it could be used to create a persuasiveargument (when a case finally does arrive before the courts) that a transfer be permitted on death. The race ison for Apple and Amazon to solve this problem, before the regulators step in....
Laurence Kaye Solicitors© Laurence Kaye 2012T: 01923 352 117