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Digital inheritance laws remain murky

1:33 PM, Nov 20, 2012   |    comments
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Printed books and CDs might have the edge over their digital counterparts at one inevitable point of our lives: death.

Physical media -- music, books, movies -- usually can be passed on to heirs without overly burdensome legal complications. But when it comes to digital files, the legal landscape remains murky and has failed to keep up with the rapid pace of technological advancements, analysts say.

Consumers now have more places to buy their digital content -- ranging from Amazon and Apple to Google. And those sellers have varying terms of use that few purchasers bother to read. Further complicating matters is the shift to store more of our digital media files in the cloud on those companies' remote servers.

"This is an unsettled area of law," says Dazza Greenwood, president of Internet consulting firm Civics.com who frequently has dealt with the issue. "It's a little messy right now. Eventually more people are going to die and pressure will build for broader policy and practical solutions. There's a lot of confusion and misunderstanding right now."

Content sellers have been slow to react partly because the issue of transference-upon-death is complex and affects only a limited number of customers, says Evan Carroll, founder of The Digital Beyond, a Web publication that publishes and collects articles addressing digital inheritance. "But these companies are going to be forced to think about it more. The sole motivator would be the consumer pressure to do so," Carroll says.

Whether digital media can be willed to next of kin depends largely on ownership and is a question of much debate among lawyers who specialize in copyright law.

While consumers may be under the impression that they are "buying" songs, e-books and movies, many content sellers -- including Apple, Amazon and Google -- specify in their terms of service that they're merely offering a license to use, or effectively long-term rent, that isn't transferable, Greenwood says.

As a practical matter, consumers can easily copy and pass on files that are stored on the user's hard drive. But transferring ownership can be more difficult if users' files, such as iTunes songs and videos, are digitally protected by content sellers. "We're also moving to a world where we don't own things. What if it's in the cloud, and what if the company goes belly up? Do you own it? It's not clear," says Deven Desai, intellectual property professor at Thomas Jefferson School of Law in San Diego.

Apple doesn't' have "a policy to will or inherit an iTunes collection," says Tom Neumayr, a spokesman for Apple.

Amazon declined to answer whether it would grant access to a deceased person's account if his or her next of kin did not have the password. But "with access to your account, family members will be able to access your digital content," says spokeswoman Kinley Pearsall.

Google did not reply to a request for comment.

Heirs also can access a protected account -- without much interference from content sellers -- if they're given a password in advance, though they may technically be in violation of terms of service.

"So long as the law is unsettled, it's up to content sellers to provide options and not to take advantage of consumers," Greenwood says. "The law hasn't caught up with technology. Longer term, just allowing someone to use the deceased's password as a solution won't be good enough."

There has been some legislative progress for surviving family members. At least three states -- Idaho, Nebraska and Indiana -- have enacted laws that allow next of kin to gain access to digital accounts, Carroll says. Other states, including New York, North Carolina and Oregon, are also considering making changes.

Xuan-Thao Nguyen, an intellectual property law professor at Southern Methodist University, has a more liberal interpretation of companies' terms of use. If a company doesn't specify a specific time period for content licensing, users may argue that the content belongs to them in perpetuity. "It's incumbent on them to draft the term limit of the license," she says.

Laws are more relaxed with e-mail and other content that users create. Gmail details a process for heirs to obtain access to accounts. Yahoo states that its account is not transferable. But its stance was successfully challenged in a lawsuit several years ago when a judge granted the father of a soldier who had died in Iraq access to his son's Yahoo e-mail account. "You have to jump through some hoops," Carroll says.

To prevent estate issues, digital media owners should plan ahead, Carroll advises. Users can specify information -- passwords and accounts to be passed on -- in their will. "If we choose to do nothing, we're leaving things to chance," he says.

Some data-inheritance services have also emerged in recent years, promising a secure place to store documents and passwords that will be passed on to a stated beneficiary upon the account holder's death.

Switzerland-based DSwiss, which offers free and paid "password locker" accounts, says its SecureSafe service is increasingly offered by Swiss banks to their account holders. With users' information stored securely in the servers in the Swiss Alps, "not even we can get access to this data," says Andreas Jacob, DSwiss' head of marketing.

USA Today

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