Sunday, November 19, 2017
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Who gets your iTunes when you die?

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The fate of your online life after death is a sensitive topic, and one both the law and technology companies have struggled with how to handle. Last month, Delaware Gov. Jack Markell took one step toward a possible solution, signing into law first-of-its-kind legislation that will grant Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the way they would be given access to physical documents. But our Twitter, Facebook, or Gmail accounts are not our only online assets.

The Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to friends and family after death. The bill broadly states that digital assets include not only emails and social media content, but also "data … audio, video, images, sounds … computer source codes, computer programs, software, software licenses." However, the law says that these digital assets are controllable by the deceased's trustees only to the extent allowed by the original service's end user license agreement, or EULA.

If you've read your Kindle or iTunes EULA, you'd know just how little control over your e-books or music you have. Every time you hit "buy" at the Kindle store, you are not purchasing an e-book; you are licensing it for your personal use only. Even if you reread your e-copy of The Hobbit twice a year for 10 years, you are no closer to owning it, and without Amazon's permission, no closer to being able to hand it down to your children. Professor Gerry Beyer at Texas Tech University says that the Delaware statute does not override this feature of Amazon's, or most, EULAs, which are protected by other forms of federal law. "The bill is not designed to change an asset you could not transfer into one you can," he told me.

Mark J. Cutrona, deputy director of the Delaware General Assembly Division of Research who helped draft the legislation, said in an email that although the bill could allow a trustee to access and control such digital assets, the complex web of laws and contracts needs further clarification. "This strays into a grey area relating to the legal differences between the treatment of physical and digital assets, which is a subject matter that may require further definition from the federal government and the courts in order to be fully addressed," he wrote.

While tech companies have been dealing with some of the issues surrounding the accounts of the deceased — for example, Facebook's "memorialize" feature or Twitter's option to deactivate profiles — they have, for the most part, not specifically addressed the effect of EULAs on the fate of any products you've bought with those accounts after you've passed on.

Google's Inactive Account Manager, for example, allows you to tell the service what you'd like to do with your data — deleting it or transferring your account to a family member or friend — after a certain time of inactivity. This includes content from Gmail, Google Plus, Picasa, and YouTube, but it does not mention content purchased on Google Play. In fact, Google Play's legal terms stipulate that any rights you have to their products may not be transferred or assigned to any third party without authorization. The new Delaware law doesn't change this. "People are going to accumulate more and more and invest thousands of dollars in digital books, movies, and music. It's a significant asset that they don't want to lose," Beyer said.

For now, estate planners are coming up with creative solutions. Beyer told me that some planners suggest setting up a trust and using it to purchase digital assets. By naming themselves and their children as trust beneficiaries, these forward-thinkers can pass down e-books or music, ostensibly without breaking any ban on third-party transfers. Of course, this idea is very new, he added, and has not been legally tested. And tech companies could easily shut down the scheme by stipulating that an account holder must be "human" rather than a trust.

"Ideally you wouldn't have to create such a legal fiction," said Sherwin Siy, vice president of legal affairs at Public Knowledge, a public policy group focused on digital issues. "Having to jump through so many hoops diminishes the promise of these services." He suggested that the idea of being able to transfer accounts like a carefully curated vinyl or DVD collections would be useful. "The question people are dancing around is, as we move from an ownership to a subscription model, that we are giving away not only the right to resell our stuff and recoup its value, but also a degree of control," Siy said.

Ultimately, you may not care about being able to pass your iTunes playlists on to your children. If so, perhaps the speed at which we consume products today, at relatively cheaper prices, means that we value ownership of our cultural artifacts — our music, books, shows, and films — much less. I may one day inherit my mother's stack of Joni Mitchell records, but given what they represent of her life and taste, I believe they'd be of equal sentimental value to me if they came in MP3 format. Are we really ready to cede the tradition of giving our children the cultural detritus of our time to contracts, licenses, and nontransferable rights?

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