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3 ways to deal with digital media when you die

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A U.K. paper created a fuss this week when it reported that Bruce Willis would sue Apple (s aapl) for the right to pass on his iTunes collection to his children when he dies.

The story turned out to be baloney and was quickly debunked by Willis’ wife. But the tale still raises an important point: how do you leave digital books and music to your loved ones?

The Problem

Last week, a Wall Street Journal story called attention to a long-standing issue that many people are just beginning to discover: we don’t own our iTunes songs, Kindle books and other digital debris.

Here’s why: When you click “I agree,” you don’t receive a piece of property but instead get a license from Apple, Amazon (s amzn) or whoever. And the terms of the license say the media in question is just for you. Unlike a book or a record, digital media can’t be transferred to your friends or, say, to your beloved grandson on your death.

Professor Richard Gold, an intellectual property expert at McGill University, summed up the legal implications of iTunes after death in an email to GigaOM:

Apple presumably has a license to distribute music and it then sublicenses to customers. Licences provide them more control on our use — the number of computers, sharing, etc. The benefit of the contract (licence) should become part of the estate but this would depend on the wording of the licence. This would not necessarily permit a transfer — you cannot force Apple to agree to an assignment of the contract — so would not be of much use. The only way I could imagine around this would be to say that a property right of some sort was transferred through the contract but I can’t think of an example that would work.

The upshot is that you can’t leave iTunes as property in your will because it’s not your property in the first place. State legislatures are beginning to take up the issue but it will be years (if at all) before we have a “who gets your iTunes” law. But don’t fret. Despite the weird licensing rules, you still have options to ensure Junior gets your digital Beatles collection:

Option 1:  Create a fancy legal trust

The original U.K. news story reported that Bruce Willis was asking his lawyers to create “family trusts” to hold his digital music. Since then, others have reported on fancy legal tools like “DAP Trust” to circumvent the iTunes rules. David Goldman, the man behind the DAP trust, says he is working on software that will let estate lawyers offer digital inheritance to their clients.

The problem here is that there is no guarantee a trust will work. After you die, the benefit of the trust would transfer to someone else — which appears off limits under Apple’s rules. “I would want to see the contract,” says Gregg Weiss, a New York estate lawyer. “You can’t change a policy in a license through a trust.”

Option 2: Burn your media onto a device and put the device in your will

Apple, Amazon and other retailers permit users to download digital books or music to multiple devices. This means that Bruce Willis and the rest of us can load up an e-reader or an MP3 player with content and then bequeath the device. Unlike the digital media, you do have a property right in the device.

Sticklers might note that Apple or Amazon have the right to take the digital content away from your chosen heir or heiress, leaving them with a barren Kindle or iPod. But we’re betting the lawyers for those companies have better things to do than crash wakes and inspect devices.

Option 3: Write down the darn password

This is the simplest and most obvious answer — simply provide your media passwords to your loved ones. Weiss, the estate lawyer, says it’s already common practice for attorneys to advise their clients to prepare a list of banking passwords. Simply add your iTunes account to the list and place it an envelope or an email to be sent when you die.

If you want to be technical, you could also provide the password in your will. Your digital songs and e-books are not your property — but your password is. Handing it over will let your digital media live on.

(Image by Chris Harvey via Shutterstock)

20 Responses to “3 ways to deal with digital media when you die”

  1. I practice the honor system. I have a really reliable torrent site that I “Back-up” my digitally purchased recordings. “With great power comes great responsibility”. Aside from that there are ways to own your iTunes library. Don you see!!!?? We still have the power!!! Buy what you listen to please!!!

  2. Who cares whats against the law anyhow? this stuff is on private property (our computers) who can say what you have got that is against so called laws, all BS if you ask me, you would need a search warrant to view whats on my system, you guys do worry way to much. I stole everything I wanted before all these digital BS laws came out, so that makes it grandfathered in my opinion, I don’t care about yours!

  3. My wife and I jointly own all our devices and we share a common spreadsheet of passwords so if one was to pass on, we are not fraudulently using our devices. Apple is not ‘exercising’ its right to remove the songs and e-books at that point and add to that the fact that our joint bank account funded the purchases…yeah I feel good with knowning my library will live on.

  4. Connie J. Mableson

    Another Option- Store your passwords on a mobile device and give the password to a trusted friend so when you die, your family has access to your accounts. One great device is the DAK at Its cheap at around $30.00. Provides for different levels of security as you wish. Remember one password instead of hundreds of user ids and passwords.

  5. Option 2 is the cleanest, particularly if you have avoided DRM. Files are files, and you should never keep your only copies of precious files only in a device and cloud controlled by someone else (who has very different incentives than you). Backup, early and often, to multiple devices. Even share your files with family before you die.

  6. Brian Jones

    All the more reason to be wary of cloud-based storage as your only backup of music or other data you might be “renting” without realizing it. Strip the DRMs, and backup to a hard disk.

    Consider this ramification: I purchased Mountain Lion from the App store. Does that mean that if I die, by wife can no longer use the software because it was on “loan” from Apple?

  7. EU Brainwashing

    Always purchase content on CD ROM, rip the files to a hard-drive, update your MP3 player from your hard-drive. Don’t be lazy or impulsive in your purchasing habits. Only ‘rent’ digital files when the deal is so substantially better value than purchasing a CD – for example via Spotify. I calculated the cost of purchasing all the music I wanted to have access to and which I have via Spotify would cost the same as 20 years of Spotify subscriptions. Now I hope I last a little longer than that but I also hope my musical preferences have moved-on too!

  8. SixSixSix

    The password argument might bump up against identity fraud. If the password is being used to as the credential to establish the identity of the person/corporation/group having purchased the license, then its use by others might be open to question when they try to do so

    In fact the combination is almost always an identifier and a credential. So the item at issue who or what is the entity being identified and is the credential being used within the terms of the license to verify that entity?

  9. These tips aren’t solutions – they are simply telling you to pirate the material in various ways.

    Therefore it’s no different that downloading the music/video from BitTorrent.

    This ‘renting’ agreement needs to be addressed as no doubt most average consumers would be completely unaware that they don’t own it after they purchased it.

      • David Woodhouse

        What if I pay for it and *then* get it with BitTorrent? Not an unrealistic prospect — I do it a lot with books. If the ebook isn’t available in my country then I download it, and then buy a paperback.

        In both cases, even though I’ve paid for the use of *one* copy, the other one is still a copyright violation under the law. Morally it’s different, I agree. But legally it’s not.

        Note that it’s *not* theft. Please don’t conflate copyright violation with theft which is something completely different.

      • That’s interesting. I bought a video game for one console, then torrented it for a different console. i still got a warning from my ISP. Are you saying I have the right to download all copies of the game since I bought one?

    • Thanks for your comment, Alex. Yes, you can loosely say you’re renting a service. A more precise way to look at it is that you’re entering a contract; you pay 99 cents in return for the right to listen to a song and, in some cases, to copy it to your iPod. These type of contractual right are not the same as property rights (which are much stronger) which is one of the reasons the inheritance issue is so messy.