by: Robert Wagner, intellectual property attorney at Picadio Sneath Miller & Norton, P.C. (Robert Wagner on G+)
Decades ago, music, movies, and books were exclusively purchased in a tangible form—records or CDs, videotapes or DVDs, and paperback or hardback books. While these formats are still largely available, more and more people are purchasing this type of content in an intangible digital format through services like Apple’s iTunes and Amazon’s Kindle stores.
In the past, the purchase of a tangible product like a record or book made transferring the product easy. Under the first sale doctrine, one simply could give or sell the record or book to another without any constraints. Thus, inheriting the record or the book did not pose any problems from an intellectual property or legal perspective. (Whether anyone wanted grandma’s or grandpa’s record or book collection is another matter).
When one purchases a song from iTunes or a book for Amazon’s Kindle store, the issue gets more complicated. One is actually purchasing a limited license to listen to the song or read the book on a limited number of devices. No physical, tangible products are purchased. Normally, the license is limited to the purchaser and is arguably valid only during the lifetime of the purchaser (assuming there are no other restrictions, as there sometimes are with video “purchases”). Thus, there is nothing tangible to give to another. Indeed, the licenses often explicitly restrict the giving or selling of the product to another.
Getting back to the situation that Bruce Willis was supposedly concerned about—what would happen to all of the music he purchased after he died? Most of the time, families will likely not be particularly concerned about whether they inherit grandpa’s music collection, but not always. For instance, what if the father or mother dies prematurely, and everything that the family was listening to or watching on a regular basis was purchased through that person’s iTunes account? The shift to a digital medium could have a very real and expensive consequence (in addition to whatever emotional trauma the family has to deal with from the untimely death).
I think a more concerning issue is the potential effect on a family’s photographs and letters, which can be some of the most treasured possessions a family has. With the shift to storing photographs on-line and corresponding through e-mail rather than letters, we are moving some of our most prized possessions and memories from tangible forms that can easily be preserved and given to others to an intangible form that may have unexpected and unanticipated restrictions. For example, if an individual stores all of his or her photographs on-line, what happens when that person dies? Will the account be closed and all the files deleted once the annual payments stop? Even if it is not, who will be allowed to access it, especially if the passwords were never written down or are lost?
We are still in the infancy of the digital age in many respects and questions like these are only beginning to be considered, and many companies’ terms and conditions are simply not designed to deal with circumstances like these. So, what should one do?
Where possible and when the ability to transfer the item to your spouse, children, or others is important, then efforts should be made to make sure the item is in a tangible form or resides on a computer in a way that is accessible regardless of whether you are alive or whether you fail to make an annual payment to a particular cloud service. In the case of pictures, that could mean having them printed out or storing them in a folder on your hard drive (instead of in the cloud). The same is true of e-mails. If there are particularly important e-mails, make sure that they have been saved on your hard drive, instead of leaving them in the cloud, or print them out.
Finally, it is a good practice to leave instructions as to what important on-line accounts you have (e-mail, Facebook, iTunes, cloud storage, banking, etc.) and how to access them so that others can get access to these accounts where appropriate if you are no longer able to. Given the important nature of these accounts, you should only leave this information with people you trust or in a location that is secure (e.g., a bank box).
It will be interesting to see how companies respond to issues like the one that Bruce Willis supposedly raised (even though he didn’t actually). The cloud provides many great conveniences, but as is often true with new technologies and ways of doing things, there are many unexpected issues that emerge. Hopefully, people, companies, and the law will find solutions to preserve those family treasures without too many hassles.