Like many Americans, I have a digital smart phone, tablet computer, and other digital media devices. Along with owning these devices, I have “purchased” (at least I thought I did) digital content such as music, movies, and digital “ebooks.” Americans purchase around $6 billion (and rising) of such content each year. However, when we die, who “owns” all of this digital content? The “legal” answer may be a surprise.
Typically, when one purchases digital content from providers like Apple or Amazon, a license agreement relating to that content is involved, and this agreement controls your legal rights to that content. Most people don’t really take the time to read and understand these license agreements. Rather, they click the “ACCEPT” button so they can move forward and access the digital content.
A typical digital licensing agreement provides that the content is “personal” and “nontransferable.” This means that these digital providers are licensing (similar to “renting”) this content only to you, and you or your estate do not have the right to transfer this content to a third person (such as your children or other heirs) when you die. Taken literally, when a person dies, the license to the digital content comes to an end.
There is no easy answer to this dilemma. The law relating to rights to digital content still needs to catch up to the world of digital ownership. In Oregon, my law partners, Victoria Blachly and Jeff Cheyne, and I have recently worked on an Oregon State Bar task force to draft proposed legislation which we anticipate will be introduced in the 2013 session of the Oregon Legislature. If passed, this legislation will allow the personal representative of a decedent’s estate to send a notice to a company holding digital content of a decedent, and within a specified time after receipt of that notice, the company must provide the personal representative with access to digital accounts maintain by such company and/or copies of any digital assets stored by the company.
While the potential Oregon legislation is not currently law, it represents an effort by our task force to begin to address an area where the law has not kept pace with technology, particular with respect to the digital content that has become so commonplace in American society. Watch for more updates in Wealth Law Blog as the legislation (hopefully) makes its way through the Oregon legislature.
