Bruce Willis has been trending on Twitter this week. Nothing to do with his dubious acting abilities. No, a story began to circulate that he wanted to bequeath his iTunes music collection (spread over numerous Apple devices) to his children but discovered that Apple not only owned the hardware and the software but also "his" music too. It now appears that this might be an unfounded rumour but, true or false, it raises some very interesting questions about the status of digital real estate in the event of death. This article explores the legal consequences of living your life digitally and the consequences when you die.
Patents (like innovation, when used by mega corporations like Apple and Microsoft) is a weasel word. It is invoked invariably whenever piracy is mentioned and this is intended to make that connection in the mind of the public. Close behind is the the dreaded EULA, the proverbial small print so off putting that most users never bother to read it in their haste to agree its terms and conditions in order to install and use the software. Simply put, when you "buy" and download music from Apple's iTunes you haven't actually bought the music. You don't own it in any legally accepted sense of the word. All you have done is to buy a license to listen to that music on any Apple device with restrictions on how many transfers and copies you are permitted to make.
Of couse it needs to be said that you never fully "own" the content of an e-book. There is also the little matter of the author's copyright
This contrasts with the pre digital era when I bought a vinyl record (remember them, whippersnappers?). I didn't license my copy of Bob Dylan's Blonde on Blonde double LP. I owned it. I could copy it (even though the record company didn't want me to). The record was not physically encoded on my record deck. The "software" was separate from the "hardware", in modern terms. Neither the record player manufacturer or the record company had any physical mechanism to hobble each other or prevent the end user from doing what they wanted. Of course it needs to be said that you never fully "own" the content of an e-book. There is of course the little matter of the author's copyright.
Digital technology is obviously superior in so many ways but one major drawback is its ability to enforce the fine print of EULAs, tie the user's software to the hardware and remotely interfere with the content on your hard drive (think Sony's infamous rootkit). (Slightly off topic, I can't resist telling you that EULAs do have their uses. Did you know, for example, that the iTunes EULA forbids you from using it to create nuclear weapons? Well, thank Heavens for that otherwise God knows what the kids would be getting up to down in the basement. You could of course use EULAlyzer to parse EULAs for key phrases revealing restrictions on your digital rights--but it's Windows only. Does it have it's own EULA and could it parse its own EULA as it installs itself?)
Apple is not the only culprit here. Both Google Play and Amazon indulge in similar behaviour. Apple may be able to freeze or suspend user accounts they suspect of file sharing (without due legal process?) but in 2009 Amazon, for example, sent an electronic pulse to Kindle devices to erase that e-book you thought you had "bought" (appropriately, George Orwell's 1984 and Animal Farm). To make matters worse, although Amazon did leave users' annotations on these books intact, they were rendered effectively rendered useless without the original texts to which they referred. Just to add insult to injury, Amazon actually uses GPL code in their Kindle (and therefore has to make it available).
We have been so (rightly) fixated with privacy here that we have paid insufficient attention to ownership and bequeathing digital assets
So, by the time you add it all up--patents, EULAs, DRM et al--the living end users find themselves enmeshed in the tangles of an involuntary Faustian pact. Obviously, one way to cut through the legal jungle is to use operating systems like GNU/Linux and software licensed under the GPL--and to try and avoid e-books and music from proprietary vendors like iTunes, Amazon and Google. And that's just in the land of the living. What about your digital rights after the grim reaper has made an unscheduled house call? Well, that's a legal black hole because, as with advances in medicine, the law is way behind the digital curve. And that's before we even remember to include digital assets like your e-mail account and all the social networks like Twitter, Identica, Facebook and Google Plus. And your personal blog (which may have financial value re advertising, even if the content is licensed under the Creative Commons), your personal domain, your PayPal account and your online banking accounts. We have been so (rightly) fixated with privacy here that we have paid insufficient attention to ownership and bequeathing digital assets.
Shaking hands with the grim reaper without making a will (dying intestate) isn't the smart play. The distribution of your estate will be delayed and incur avoidable financial costs and the assets may go to people for whom they were never intended, especially if you have complicated personal affairs. In an age when life can be prolonged by advanced medical intervention, even a basic will may prove insufficient if you experience a disaster like locked-in-syndrome. For that I would need to add a Living Will. Perhaps the same thing is needed for the management of digital assets too lest they succumb to the equivalent of locked-in-syndrome.
Such provisions do actually exist already. For example, AssetLock and ExecutorSource. And then there is DapTrust. Rather than paraphrase DapTrust (Digital assets Protection Trust) I quote directly from their website:
"The DAP™ Trust is specifically designed to protect your digital assets upon your death or incapacity. The biggest problem with Digital Assets is that most digital assets are licenses that are non-transferable and expire upon death or short terms of inactivity. A DAP™ Trust can manage these assets and allow those who you preselect to access them without violations of the license terms and without potential liability to others who may claim an interest or claim to have been harmed by the improper access and use of information contained in these assets."
This is a Trust, not a will--and there is a good reason for that. Wills can be made public (potentially exposing usernames and passwords) and are less flexible than trusts which can respond better to changing digital circumstances. This only touches the surface of a large and complex topic. If the reader wishes to pursue the topic in more depth, the American Bar Association has an excellent overview.
Of course, everything I have written here is essentially a catalogue of palliative measures, aimed specifically at managing the legal aftermath of digital assets. It does nothing to address the underlying nature of proprietary music and e-book licensing from Apple and Amazon. There is no strictly technical solution for this. If there is ever going to be a solution it will be one based on political lobbying by pressure groups and users refusing to be exploited as passive consumers. In the meantime, there is an available "solution"--based on turning the clock back.
If you are willing to endure the privations of the pre-digital age, buy books printed on paper and buy CDs. That constitutes the bulk of the value of your digital real estate. Until such times as digital licenses become inheritable assets and you fully "own" your music and e-books, perhaps dead tree analogue and plastic backups might be your best bet.That might cause your house to become a hoarder's paradise but at least your relatives will be able to de-clutter it all without recourse to expensive solicitors or the interminable Bleak House-like delays of Probate.