The other night my wife and I purchased a movie to stream. There was no option to rent it, but if we bought it, we’d get to own it forever then, right? This got me thinking. How many of us have accumulated a sizeable library of digital assets: movies, music, and books? Have you ever asked yourself, “What happens to these digital assets when I die?”
That question pops in my head often, perhaps not surprisingly as I am a trusts and estates lawyer. It turns out, many providers give you nothing more than a nontransferable right to use the content. If you buy every song from The Rolling Stones on iTunes, you cannot give those songs to your son or daughter in a will. In fact, you cannot give them to someone else while living. Apple, for example, restricts usage to Apple devices and the account holder. Amazon has a license agreement for Kindle that states that digital content is “licensed” for personal use and not for you to “sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign …to any third party.” Most of the agreements from large tech providers state that online accounts cannot be transferred to anyone else upon death, so your digital assets may live in a state of limbo forever if executers and loved ones do not have access to your account. So really, when you purchase a book or song, it is more like renting for a lifetime, or even only as long as the company continues to exist.
Contracts rule all of these digital assets, and few, if any, are easy to read. And all are subject to change by the content provider. Tech companies often update and change their user agreements, if you’re an Apple user, you’ve probably clicked “I Agree” for a software and user agreement update many times. How many times do you read the fine print of those? You may not even know when or what changed.
Legislatures are passing laws to govern the disposition of digital assets but none can yet change contractually binding nontransferable assets into transferable ones. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), for example, now adopted by 44 states (not Pennsylvania) helps fiduciaries gain access to digital accounts but does not, and cannot, yet change the ownership of those assets.
The takeaway: Do you really own your digital assets? For many of them, you do not. But planning still matters. Keep track of what you have and digital assets you value (whether they are transferable right now or not). Your heirs cannot fight for access to assets they do not know about, and the laws for digital property are ever changing as technology advances. Our Trusts + Estates team is available to discuss your planning, digital and otherwise. Contact us to learn more.