If your answer is that your estate will, you have guessed incorrectly:
Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.
Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.
And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”
Part of the problem is that with digital content, one doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files — but they don’t actually own them.
Apple (US:AAPL) and Amazon.com (US:AMZN) grant “nontransferable” rights to use content, so if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter.
According to Amazon’s terms of use, “You do not acquire any ownership rights in the software or music content.” Apple limits the use of digital files to Apple devices used by the account holder.
“That account is an asset and something of value,” says Deirdre R. Wheatley-Liss, an estate-planning attorney at Fein, Such, Kahn & Shepard in Parsippany, N.J.
But can it be passed on to one’s heirs?
Most digital content exists in a legal black hole. “The law is light years away from catching up with the types of assets we have in the 21st Century,” says Wheatley-Liss. In recent years, Connecticut, Rhode Island, Indiana, Oklahoma and Idaho passed laws to allow executors and relatives access to email and social networking accounts of those who’ve died, but the regulations don’t cover digital files purchased.
There is apparently some discussion by estate lawyers to try to get around this problem by creating legal trusts that would be the owner of the online content, but I can’t see how that’s going to work. If, under the terms of your agreement with Amazon and Apple, the digital files are non-transferable, then I don’t see how an individual could transfer their digital content to the trust to begin with. From the perspective of Amazon and Apple, any agreement that tried to do that would be a legal nullity, and based on their respective terms of service, they would be right.
In reality, this is just another effect of the way that we treat copyrights and digital content under the law here in the United States. Technically, you’ve never actually owned any of the musical content on any of the media you’ve purchased, whether it’s a vinyl record, a compact disc, or a digital file. Before the digital era, though, you did own the physical medium on which the content was recorded. So, while you didn’t have the legal right to make copies of, say,that Led Zepplin album you bought in the 70’s, you did have the right to sell the physical record itself. The same rules applied to cassettes, 8-track tapes, and compact discs. Now, though, there is no physical medium to speak of that you can sell to a Used Records store, there’s just the digital content and the “no copying” rule still applies. Similarly, since a copyright holder has the right to set the terms of whatever license they grant to you when you purchase that digital file, they can set terms that say that what they are really selling you is the non-transferable right to possess a copy of the digital music file, not a property right in the music file itself. That’s why you cannot legally transfer it to your heirs when you die, because you never owned it to begin with.
Obviously, this is not a practical situation for the modern era. At some point, people are going to start realizing that they have less rights to their music than they used to and people will call for the laws to be changed. Of course, we’ve heard calls to change these laws many times in the past and they’ve mostly gone nowhere because the media companies and copyright holders have far more clout in Congress than ordinary Americans do and, for most people, this is an off-the-radar issue. So, the prospect for change isn’t very good unfortunate.
Now, practically speaking, there are ways to get around this “non-transferable” issue. If your digital files are all stored on your computer or your iPod, it would still be possible for your family to access them. Technically, though, they’d be doing something they’re not legally entitled to do.
Update: As noted in the comments, Bruce Willis is reportedly planning to sue Apple over this issue:
According to The Sun (UK), Bruce Willis is considering a suit against Apple over the terms and conditions of its iTunes service. The actor has collected a huge music library, and “wants to leave the haul to his daughters Rumer, Scout and Tallulah. But under iTunes’ current terms and conditions, customers essentially only ‘borrow’ tracks rather than owning them outright. So any music library amassed like that would be worthless when the owner dies.”
Die harder, indeed! Willis may set up a trust for his tunes to get around the problem, but in the meantime, he is “also backing legal moves to increase the rights of downloaders,” according to The Sun.
The story quoted London estate attorney Chris Walton, as saying, “Lots of people will be surprised on learning all those tracks and books they have bought over the years don’t actually belong to them. It’s only natural you would want to pass them on to a loved one.”
If Willis goes through with this, it would bring some needed attention to this issue and perhaps help spur calls to change the law. At the moment, though, I don’t know that his case has much chance in the courts.
