Your Digital Estate: The Sad Fate of Your iTunes & Kindle Libraries

“I hope it’s not a deal-breaker, Mitt, but my playlist starts with AC/DC and ends with Zeppelin,” said Paul Ryan to his prospective boss, Mitt Romney, who has “songs on his iPod which I’ve heard . . . in many hotel elevators. He actually urged me to play some of these songs at campaign rallies.”

Nothing like Beethoven’s 5th to get the crowd roaring and the youth voting.

Whether your playlist resembles that of Ryan, Romney, or even Obama,* it’s important to keep up with how far the law is lagging behind the technological advancements that enable you to store entire music libraries on a thumb drive. That’s why this MarketWatch story – on the fate of your digital assets after you die – was so interesting.

It’s a concise, worthwhile read so I won’t rehash it all here, but it’s worth considering just how many songs and digital books you have right now. A couple thousand? What about down the road? How many might you have accumulated by the end of your life? The total could be in the tens of thousands, and at a rate of at least $1.00 per digital file, that could be a valuable collection – one worth safeguarding for your heirs by including it in your estate plan.

The question is: How?

Everyone knows that lawyers are dinosaurs. Correspondingly, the law reflects that natural truth.

To be blunt, yesterday’s law is just not keeping pace with the relentless advance of tomorrow’s – or even today’s – technology. Inheritance law is no exception and right now there are serious limitations on the digital property rights offered by the tech companies responsible for making the iPhone 5 and the Kindle Fire standard in our daily arsenal of distraction.

As Bruce Willis now knows, legally, you don’t actually own any of your digital files.  At least, not the ones purchased from vendors like Apple’s iTunes or Amazon’s Kindle Store. What you own are the rights to use those files; Apple and Amazon still own the files themselves. Basically, you’re just renting your music and books for life – and the clauses in those pesky “Terms of Service” agreements that everyone accepts without a thought stipulate that your right use those files is non-transferable.

And perhaps that’s how it should be. The law is still playing catch up with the vast file-sharing piracy enterprises prowling the unchartered internet waters, so granting non-transferable renter’s rights to all such files across the board may currently be the best way to fight that. I don’t know myself.

What I do know is that America’s historical and cultural bedrock is shot through with philosophical veins championing individual property rights (read or wiki your Locke if you need a refresher) and that there is much money to be made in mining those veins today. While the concept of property has changed – and will continue to change – remember that where goes the money so goes the law. If you clicked on the MarketWatch story, you’ll know that enterprising attorneys are already hard at work to adapt to the legal challenges of digital property inheritance.

I expect that eventually there will be some kind of loophole, some kind of exception to allow lawfully-purchased digital property rights to lawfully pass to one’s heirs just like any other property. As the law currently stands, without prudent forethought and estate planning you will only be able to bequeath an empty iPod or eReader because your tens of thousands of digital books, songs and other media will revert to the companies from which you purchased them.

So if you don’t mind giving the ghost of Steve Jobs tens of thousands of dollars when you die, then no, I’m sorry but you can’t have these last five minutes of your life back. But if that idea bothers you as much as it does me, give us a call and we’ll see about safeguarding the legacy of your digital estate.

Good luck and good hunting.

_____________________________

*If you’re wondering, my playlist is closer to Paul Ryan’s but with healthy dash of Jimmy Buffet to maintain my sanity. “I don’t know where I’m a gonna go when the volcano blows…”

If you’re interested in planning for your digital estate, find out how to get in touch with us at:  TheFisherLawOffice.com. You can also contact us at Facebook.com/FisherLawOffice, on Twitter @thefisherlawoffice, or at LinkedIn.com/in/FisherLawOffice. If you come here just because we sometimes incorporate kittens into the blog, you’d best consult the Arts and Cats Movement. Click image(s) for source.

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