Who Owns Your iTunes Library When You Die?

Technically, you don't own your digital music files. That means you can't transfer them to your heirs after you die.

If your answer is that your estate will, you have guessed incorrectly:

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 (US:AAPL)  and Amazon.com (US:AMZN)  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.

According to Amazon’s terms of use, “You do not acquire any ownership rights in the software or music content.” Apple limits the use of digital files to Apple devices used by the account holder.

“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.

There is apparently some discussion by estate lawyers to try to get around this problem by creating legal trusts that would be the owner of the online content, but I can’t see how that’s going to work. If, under the terms of your agreement with Amazon and Apple, the digital files are non-transferable, then I don’t see how an individual could transfer their digital content to the trust to begin with. From the perspective of Amazon and Apple, any agreement that tried to do that would be a legal nullity, and based on their respective terms of service, they would be right.

In reality, this is just another effect of the way that we treat copyrights and digital content under the law here in the United States. Technically, you’ve never actually owned any of the musical content on any of the media you’ve purchased, whether it’s a vinyl record, a compact disc, or a digital file. Before the digital era, though, you did own the physical medium on which the content was recorded. So, while you didn’t have the legal right to make copies of, say,that Led Zepplin album you bought in the 70’s, you did have the right to sell the physical record itself. The same rules applied to cassettes, 8-track tapes, and compact discs. Now, though, there is no physical medium to speak of that you can sell to a Used Records store, there’s just the digital content and the “no copying” rule still applies. Similarly, since a copyright holder has the right to set the terms of whatever license they grant to you when you purchase that digital file, they can set terms that say that what they are really selling you is the non-transferable right to possess a copy of the digital music file, not a property right in the music file itself. That’s why you cannot legally transfer it to your heirs when you die, because you never owned it to begin with.

Obviously, this is not a practical situation for the modern era. At some point, people are going to start realizing that they have less rights to their music than they used to and people will call for the laws to be changed. Of course, we’ve heard calls to change these laws many times in the past and they’ve mostly gone nowhere because the media companies and copyright holders have far more clout in Congress than ordinary Americans do and, for most people, this is an off-the-radar issue. So, the prospect for change isn’t very good unfortunate.

Now, practically speaking, there are ways to get around this “non-transferable” issue. If your digital files are all stored on your computer or your iPod, it would still be possible for your family to access them. Technically, though, they’d be doing something they’re not legally entitled to do.

Update: As noted in the comments, Bruce Willis is reportedly planning to sue Apple over this issue:

According to The Sun (UK), Bruce Willis is considering a suit against Apple over the terms and conditions of its iTunes service. The actor has collected a huge music library, and “wants to leave the haul to his daughters Rumer, Scout and Tallulah. But under iTunes’ current terms and conditions, customers essentially only ‘borrow’ tracks rather than owning them outright. So any music library amassed like that would be worthless when the owner dies.”

Die harder, indeed! Willis may set up a trust for his tunes to get around the problem, but in the meantime, he is “also backing legal moves to increase the rights of downloaders,” according to The Sun.

The story quoted London estate attorney Chris Walton, as saying, “Lots of people will be surprised on learning all those tracks and books they have bought over the years don’t actually belong to them. It’s only natural you would want to pass them on to a loved one.”

If Willis goes through with this, it would bring some needed attention to this issue and perhaps help spur calls to change the law. At the moment, though, I don’t know that his case has much chance in the courts.

 

FILED UNDER: Economics and Business, Entertainment, Science & Technology, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. MstrB says:

    Bruce Willis is planning a legal battle over it. link

  2. Tony W says:

    Until digital media came around I had purchased duplicate copies of some of my favorite recordings over the years when the physical media wore out. Always felt like they should have given me the new media for free – guess the “license” system only works one direction.

  3. Al says:

    This is why I refuse to buy anything but unencrypted media files and have stayed far away from the iTunes music store. Anything I buy I want to actually own.

  4. Stan25 says:

    The RIAA will fight this tooth and nail. On the other hand, this suit might just be the thing to bring down the RIAA and stop their heavy handed treatment of anyone who dares to flaunt the rules.

  5. Jeff says:

    I would think the trust would work, but only if you set up your Amazon, iTunes, etc. account with the trust from the get-go.

  6. James Joyner says:

    I noted the Willis suit in the wee hours this morning but never got around to writing about it. One thing that occurred to me, though, is: How does iTunes know you’re dead? Presumably, all that the strangely-named Willis kids would need is dear old dad’s iTunes password—or his hard drive, iPod, or whatever—and they’ve got his music. What, Apple’s going to track the obits and conduct cyber attacks on your stuff?

  7. rudderpedals says:

    When you buy an itune is an encrypted file delivered?

    I’ve done what Tony W has done and used to replace media, but now the replacement to an immortal .mp3 is the last time it gets replaced.

  8. @James Joyner:

    This is true, but as one of the articles about points out, what you cannot do is, say, give one part of your digital library to one child and another part to another child.

  9. DC Loser says:

    This is why I still buy CDs.

  10. Al says:

    @rudderpedals:

    If you get the file from iTunes in the AAC format then yes. You can pay extra to get unencrypted MP3 files.

  11. Dave Schuler says:

    What, Apple’s going to track the obits and conduct cyber attacks on your stuff?

    Of course they are. When it becomes financially significant enough to do so. Since in most states publishing death notices in actual printed form is a legal requirement but doing so in digital form is optional, until the legal requirements catch up this may be a career opportunity for human beings (rather than computer programs, I mean).

  12. Spartacus says:

    Very interesting and nice post.

  13. matt says:

    The problem stems from the fact that in the view of the law you never actually owned any of the music you bought. Even when you buy a CD you’re only buying a license to listen to that CD. This is all thanks to the DMCA and other laws passed by lawmakers and paid for by the powerful copyright lobbies (RIAA MPAA ETC). This is only the beginning as once the Trans-Pacific Partnership (TPP) agreement is signed and in place we’ll be looking back on these days as the golden age of fair use.

    The ultimate goal of forcing people to pay for content multiple times for every device they use will be soon.

  14. PJ says:

    While this is interesting, I doubt that it will an issue for very long.
    While companies like Apple would like to continue to sell people songs and get a 30% cut, subscription services will win in the end.
    Buying digital songs will be a blip in time between buying “physical” songs (CDs,LPs, tapes, etc) and subscription services.

  15. grumpy realist says:

    Considering that I have a book in my library dating from 1753…..

    Yeah, I’m a Luddite. I insist on CDs unless there’s no other way to get the song.

    It’s not even a question at death–you’re going to have the same problem when splitting up one’s library in a divorce settlement, as gifts, etc…

    What this means is that for estate and property purposes, your iTunes library is worth zilch. Apple is either going to have to create transferrable licenses, lower the price, or something.

  16. rudderpedals says:

    @Al: Thank you. I’m OK with .mp3s but I think the cognoscenti really like the lossless formats. Is that why they’re not setting the AACs free?

    For legacy purposes the .mp3 itunes option sounds like the easy workaround for getting tunes to the kids, albeit while violating the license.

  17. PJ says:

    @grumpy realist:

    Considering that I have a book in my library dating from 1753…..

    We aren’t many years away from everyone being able to store every printed book on their computer. Acquiring them all in digital form would be quite a task (and very illegal), but the amount of storage needed would, within some years, not be an issue.

    Your own local Library of Alexandria that you then could access from an e-reader or tablet.

    Now, storing the massive amount being published online every year, that’s a bit more daunting…

  18. matt says:

    @rudderpedals: MP3s are a crime against music. I use only FLAC..