You bought your digital content, but do you own it?
It used to be easy – you bought a CD from a shop and that made it yours, you could play it wherever you wanted and the shop that sold it you couldn’t just decide to take it back. However, technology has changed the way we buy music, books and even films. News that Bruce Willis is apparently considering legal action against Apple to ensure he can leave his iTunes collection to his daughters will have surprised anyone who thought that the digital media they buy online is their’s to do with as they choose. So what rights do you have on virtual accounts and goods?
Across the globe the law is in a state of flux, it hasn’t been updated to keep up with the innovations in technology. It was written to deal with physical goods, so it’s not clear what the position is with social networking accounts, iTunes libraries, Lovefilm or Netflix subscriptions and so on.
There still aren’t statutory laws around ownership of virtual goods, nor is there any case law. The European Union is looking at consumer protection in this area, but no laws have yet been enacted. It is therefore being left to the providers of content to decide what they will allow the consumer to do with the items they buy and share online. There are promising signs that judges are starting to recognise that virtual content can be owned like tangible goods, for example, the 2011 case of a man who was jailed for stealing online poker chips.
It will surprise many to find that in many cases you are in fact leasing the content rather than buying it. This is because you’re generally sold a licence to use the song, film or ebook, rather than the item itself. When the music is downloaded on to a device, you can leave that to someone, but you can’t put instructions in your will to share out the holdings in your iTunes account after you’re gone, because you don’t actually own the contents of it. Either the terms and conditions will explicitly prohibit the sharing of downloaded content, or use language that implicitly rules against it.
Work around are possible; you could pass your password and other account details on to your family or the executor of your will, but it’s a risk, as the content provider could easily suspend the account – however, if the US courts decide iTunes must allow the passing on of licences, this whole area may be opened up.
As with music and films, when you die your ebook library will die with you. Amazon says to Kindle users that: “The purchase and download of digital content from Amazon.co.uk, including content from the Kindle Store, is associated with the Amazon.co.uk account used to make the original purchase. As a result, Kindle content cannot be shared like a physical book.”
So you can’t move books from one Kindle to another, and you can’t split up a collection of books between family and friends. You could leave the e-reader holding your collection to a person, but if they needed to access the account they might run into difficulties, and as such, you can’t leave it to someone else with complete certainty.
With regard to social media accounts, most networks will be unwilling to allow access to the account of someone who has passed away for fear of breaching privacy rules.
Facebook’s terms and conditions include the clause “You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission”, which pretty much rules out handing over your account when you die. However, Facebook will let your family turn your profile into a memorial page, provide there is proof of your death.
Twitter say that they “give you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software”, which implies that accounts can’t be transferred, although it seems unlikely that they would pursue a person for logging into a relative’s account after they had died. However, there are inactivity rules, meaning that if nothing has happened with your account for a long period, it could be deleted.
Apple says about its iCloud backup and synchronisation service that “”You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted.”
English law says that the copyright of emails and other material stored online forms part of a person’s estate, and should therefore be passed on to executors. However, solicitors say that ISPs (Internet Service Providers) do not always allow access. There can also be issues of jurisdiction, where ISPs are based in a different country to where the user lived.
As such, anyone worried about their digital legacy should have a will that says chosen executors have a right to access social accounts and digital assets, and to direct the executors on how the accounts and assets are to be dealt with. If the executors meet resistance from the online providers then they could apply for a court order allowing them to deal with everything in accordance with the will – it does however remain to be seen how a court will react.
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