Image: Pexels The accidental “death” of Facebook founder Mark Zuckerberg and millions of other Facebook users is a timely reminder of what happens to our online content once we do pass away. Similar banners populated profiles across the social network. After a few hours of users finding family members, […]
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 AAPL, +0.79% and Amazon.com AMZN, +0.98% 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.
“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.
Apple and Amazon did not respond to requests for comment.
There are still few legal and practical ways to inherit e-books and digital music, experts say. And at least one lawyer has a plan to capitalize on what may become be a burgeoning market. David Goldman, a lawyer in Jacksonville, says he will next month launch software, DapTrust, to help estate planners create a legal trust for their clients’ online accounts that hold music, e-books and movies. “With traditional estate planning and wills, there’s no way to give the right to someone to access this kind of information after you’re gone,” he says.
Here’s how it works: Goldman will sell his software for $150 directly to estate planners to store and manage digital accounts and passwords. And, while there are other online safe-deposit boxes like AssetLock and ExecutorSource that already do that, Goldman says his software contains instructions to create a legal trust for accounts. “Having access to digital content and having the legal right to use it are two totally different things,” he says.
The simpler alternative is to just use your loved one’s devices and accounts after they’re gone — as long as you have the right passwords.
Chester Jankowski, a New York-based technology consultant, says he’d look for a way to get around the licensing code written into his 15,000 digital files. “Anyone who was tech-savvy could probably find a way to transfer those files onto their computer — without ending up in Guantanamo,” he says. But experts say there should be an easier solution, and a way such content can be transferred to another’s account or divided between several people.“We need to reform and update intellectual-property law,” says Dazza Greenwood, lecturer and researcher at Massachusetts Institute of Technology’s Media Lab.
Technology pros say the need for such reform is only going to become more pressing. “A significant portion of our assets is now digital,” Carroll says. U.S. consumers spend nearly $30 on e-books and MP3 files every month, or $360 a year, according to e-commerce company Bango. Apple alone has sold 300 million iPods and 84 million iPads since their launches. Amazon doesn’t release sales figures for the Kindle Fire, but analysts estimate it has nearly a quarter of the U.S. tablet market.
As the social media manager at LACMA, I am deeply entrenched in digital communication both professionally and personally through the various social networks I use on a daily basis. For the most part, I am comfortable with technology, which some might feel wary of or even fear. So when I heard about the Hereafter Institute, I was intrigued and even excited. The thought of a digital afterlife hadn’t really crossed my mind, even though I had witnessed and experienced loss in the past decade, often communicated and memorialized through Facebook and other social media.
To think about my own death and the subsequent decisions my kin would make regarding my online presence would be an eye-opening experience. So I arrived at LACMA on a Sunday afternoon and proceeded to the Bing Theater lobby. I was greeted by a woman in a white lab coat, who escorted me to a desk to check in. The desk was staffed by two more women in lab coats, release forms neatly stacked atop, next to pens and stickers branded with the Hereafter Institute’s infinity loop logo. After filling out the form, I was asked to wait on one of the black leather Barcelona chairs, which formed a U-shaped waiting area surrounding a glass table with a single white orchid. Familiar spaces had been transformed into a more institutionalized setting to fit with the performance.
Another woman in a lab coat escorted me to the Director’s Lounge in the Pavilion for Japanese Art, where she asked me questions about my online presence and told me about the three options for a person’s data when they die: 1) Continuation 2) Deletion 3) Memorialization. There isn’t space to explain each, but if you’re curious, leave a comment, and I’ll go into more detail!
She also informed me that Facebook has a “legacy contact” setting that allows you to designate one of your friends on the network to manage your profile when you pass. She gave me the option to follow along and do it in the moment. With a “no time like the present” attitude, I designated my oldest friend as my digital heir. Facebook allows you to write a personalized message for the notification it sends your heir, so I added the disclaimer that I’d explain later and not to be alarmed.
Next, I was asked to stand on a turntable so they could create a 3D scan of my body (something which I had done before at the Museum of Art and Design in New York—I even have a little figurine of myself to prove it).
My tour guide said they would use the scan to create an animated avatar of me. Once completed, we left the Pavilion for Japanese Art and meandered through the museum’s beautiful bamboo garden and into the Art + Technology Lab.
Here, another woman in a lab coat explained that I would be viewing examples of digital memorials for three different people in virtual reality. I lifted the VR headset over my eyes and she outfitted me with headphones playing calming music. I saw two people memorialized in computer-animated spaces, complete with a voiceover by a loved one describing the person. One had a guitar and was sitting on a couch on a sunny beach, while the other was pacing around her own personal gallery where artworks floated in a room without walls. Then I felt a tap on my shoulder and the headsets were removed.
It was time for the final component of the performance. I must admit I was a little worried that I would be emotionally affected by this part. Two flower arrangements flanked a dark screen. A stranger stood in front of the screen and began talking about me in the past tense, eulogizing, throwing out real facts from my life, including where I grew up, where I went to high school, the places I had worked, and the names of family members.
The screen behind him flickered and cycled through dozens of messages I had written on Facebook in the recent past, and then my avatar walked into the frame, wearing the same black shirt, long gold necklace, jeans, and flip flops I was still in. I watched my digital self turn and walk off into the horizon. The lights went up and I was once again greeted by my guide, who walked me outside and bid me farewell.
I left feeling introspective about the part of myself I share online, and the persona I’ve created that has the potential to live on beyond my physical body. My experience with the Hereafter Institute was sometimes entertaining, sometimes thought-provoking, and even a little eerie. I’m not a morbid person, but I now I think I might like to prepare my digital legacy for when I die.
In their experiment, the fictitious company had a 4,316-word Terms of Service Agreement for the user to read when signing up for the company’s social networking site. By comparison, Google’s Terms of Service Agreement (revised April 14, 2014) runs 1,881 words, Facebook’s Terms of Service Agreement (revised January 30, 2015) runs 3,159 words, and Yahoo!’s Terms of Service Agreement (revised March 16, 2012) runs 5,585 words. The working paper notes that an average adult should be able to read the 4,316-word Terms of Service Agreement used in the experiment in 15-17 minutes. However, in the experiment, 86% of users spent less than one minute reading the Terms of Service Agreement, and 97% of users spent less than five minutes reading the Terms of Service Agreement. Only 9 of the 527 participants in the experiment (1.7%) reported noticing the “gotcha clause” requiring the user to assign their first-born child to the company.
From an estate planning perspective, some Terms of Service Agreement provisions are important to consider, especially when planning for a user’s incapacity or death. Here are several provisions to consider in reviewing Terms of Service Agreements:
- May the user share the user’s password or let others access the user’s account? For estate planning, this is important to determine whether a fiduciary or family member can access the user’s account during the user’s incapacity or after the user’s death. If someone other than the user accesses the user’s account and “exceeds authorized access”—which could include violating the access rules of a company’s Terms of Service Agreement—that person could be charged with a crime under applicable state law, under the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030(a)(2)), or under the federal Stored Communications Act (18 U.S.C. § 2701(a)) For example, Section 4.8 of Facebook’s Terms of Service Agreement (revised January 30, 2015) says “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”
- May the user transfer the user’s account? For estate planning, this is important to determine whether the user’s account may be transferred to another individual, to the trustee of a revocable living trust, to the trustee of an irrevocable trust, to a Limited Liability Company (LLC), to a partnership, or to a corporation either during the user’s lifetime or after the user’s death. If the user breaches the account transfer restrictions in the company’s Terms of Service Agreement, it could be grounds for the company to terminate the user’s account.
- Does the user’s account terminate on the user’s death? For estate planning, this is important to know what planning needs to be done during the user’s lifetime to preserve and protect the user’s account contents and what planning options are available after the user’s death. For example, Section 28 of Yahoo!’s Terms of Service Agreement (revised March 16, 2012) says “You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death.”
- What rights to the user’s data are being assigned to the company? For estate planning, this is important to know what intellectual property rights are involved. For example, is the user granting the company a license to use original works of authorship of the user that may be protected by copyright law? If so, does that license continue after the user’s death or after the user’s account is deleted?
The death of the world famous popstar has shone a light on how important it is to have a Will in place says Hannah Blakey.
On 21 April 2016 the Queen celebrated her 90th birthday. A day of jubilation was planned, honouring the Queen’s life and her dedication to the Commonwealth and international affairs. On the day, however, it was the death of a Prince which shared the headlines alongside the life of a Queen.
For, also on 21 April, Prince, one of the twentieth century’s greatest musical artists, was found dead in a lift on his Paisley Park estate, near Minneapolis. In interviews with friends following his death, Prince has been described as healthy in his habits, tireless at work and an energetic creator who avoided alcohol and recreational drugs. His death has therefore left investigators and mourners alike grappling with how the musician’s life could have come to such a sudden end.
The unexpected nature of Prince’s death, tragically at the age of 57, alongside a flurry of other shocking celebrity deaths in 2016, exemplifies the importance of having appropriate estate planning in place. As it is never possible to know what is waiting around the next bend, preparation is vital.
On this side of the pond, the first step that all should take, once they are over eighteen, is putting in place a Will. By doing so, it is possible to avoid the inflexible intestacy rules that would otherwise apply, ensuring that you are in control of where your estate passes. Someone in the public eye, like Prince, should also prepare the Will with publicity in mind: a Will becomes public document after a person’s death. Including a trust or overriding power in a Will not only provides flexibility to adapt to whatever the future holds (a key consideration when you are putting a Will in place which is unlikely to be needed for decades) but can also protect the identity of heirs.
A key element of putting in place a Will is considering who to appoint as executors of your estate. The executors are responsible for collecting in and distributing the estate of the person who has died in accordance with the terms of their Will. The role of an executor is one of great responsibility. It can also be an onerous job, so it is important to consider whether those chosen will have the time and abilities to take on the role, especially at what is likely to be a highly emotional period.
To aid your future executors, the Law Society’s Wills and Inheritance Quality Scheme Protocol recommends the completion and maintenance of a Personal Assets Log. By keeping an informal inventory of your assets (and storing important policy documents alongside this list), you will enable your executors to piece together more easily what you own (and if your executors are professionals, more cost-effectively).
In the technological age in which we live, it is vital that, in preparing this log, you consider leaving clear instructions about what should happen to social media, computer games and other online accounts after your death, as well as more tangible assets. Preparing a list of all your online accounts, such as email, banking, investments and social networking sites, will make it easier for executors to work out your digital legacy and adhere to your wishes. Leaving a list of accounts (rather than a list of passwords and PIN numbers) is preferable, as an executor accessing your account with passwords and PIN details could be committing a criminal offence under the Computer Misuse Act 1990.
With an estimated estate of £200 million, and with no living children or partner, it is not yet clear who will inherit Prince’s fortune or the rights to his music. Wherever his assets pass, it is undoubtable that Prince’s memory will live on through his innovative music that defined an era.