Digital Assets on Death: Bruce Willis vs. Apple :: Laurence Kaye

Digital Assets on death – Bruce Willis vs Apple Article (If you want to see my piece about this in ‘The Sun’ on this – click here) In making plans for who inherits what on his death, Bruce Willis has stumbled upon a problem with the digital age; whilst he can leave his physical assets to his children, things are not so clear cut when it comes to leaving his digital assets. As a result of the shift to digital, instead of amassing collections of CDs (and for some of us vinyl), DVDs and paperbacks, 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 to our 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 those digital files, to do with as we like. Instead, according to the terms of most services like Apple and Amazon, what we are ‘buying’ is a personal right to use the content, subject to a number of restrictions. So, for example, we might be restricted to using the content on a particular device or restricted from being able to copy it more than a certain number of times and then only to certain authorised devices. Typically, we are also restricted from transferring the right that we purchased to 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 legally transfer our digital files and leave them to our heirs or whether our collections of digital content expire on our death. 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 is loaded to our heir. That however, still supposes that the heir can get access to any linked accounts (e.g. your iTunes account), in order to receive updates etc. (Note that some online terms of service may prevent you from transferring accounts to other people). In legal terms, however, you are still left with the problem that it might be 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 this problem. 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 some shorter period. After all, when you rent a car, you know you haven’t bought it. But if in the case of digital content, 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 their collecting 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 over licence 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 ruling which 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 not address squarely the issue of transferability when it comes to inheritance; it could be used to create a persuasive argument (when a case finally does arrive before the courts) that a transfer be permitted on death. The race is on for Apple and Amazon to solve this problem, before the regulators step in....
Laurence Kaye Solicitors © Laurence Kaye 2012 T: 01923 352 117 E: [email protected] www.laurencekaye.com
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