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Tuesday, October 22, 2013

Who Inherits Your Digital Music or Video Collection? Digital Rights: More Questions Than Answers


By: Peter J. Lamont, Esq.
New Jersey Business and Personal Law Attorney
Law Offices of Peter J. Lamont

Living our lives firmly entrenched in the digital age, as we do, certainly poses some interesting legal questions.
Many of the assets we accumulate are digital not physical, and will be left to our loved ones after we have shuffled off this mortal coil. Being digital, these assets reside on our computers, tablets, smartphones and increasingly - in the Cloud.
With this in mind, consider the following: Your aged uncle, a confirmed bachelor, has digital music and book collections upon which he has spent a considerable amount of money. A valuable asset, no question.
One sunny New Jersey afternoon, as the two of you are listening to a rare Springsteen recording over coffee and a slice, he brings up the subject of his mortality and his plans to bequeath to you his music and book collections.
You recall the hour or so you spent reviewing the user agreement (at his urging) when you helped him sign up for the service. Searching your memory, you can think of no reference to the bestowal of purchases after death. You wonder if he can legally will digital music and books.
Had the collections been physical, the answer would have been straight forward. They are tangible assets and passing ownership on would not be an issue.
Digital assets are a different matter however - the agreement which we "sign" by quickly hitting the "agree" button, gives the user the right to use the digital files but does not pass ownership. Therefore, it might logically follow that the rights to use the files cease to exist with the owner's demise.
However, these files are associated with an account, and the account is an asset and as such, something of value. It could very well be argued that the rights to use the files belong to the account. Which raises the question - can the account, with its associated ID and password, be willed to an heir? With the ID and password under the control of an heir, access to the files is easily accomplished - but is it legal? Easily done with no blatant infraction of law or breach of the user agreement; the issue may be left to one's moral compass to determine.
The situation becomes more confusing when considering multiple heirs. If you can bequeath the account - is it legally possible to divide the contents of the collections among a group of beneficiaries?
We are raising more questions than we are providing answers but the intention of this article is not to provide hard and fast rules nor offer advice. Rather - concerning estate planning in the digital age - we want to point out the complexity of drawing up a will in the twenty-first century, and the advisability of consulting a lawyer before undertaking any estate planning.
Another digital issue, which has been raising its head more frequently recently, concerns the legality (or illegality) of downloading music which you have purchased on vinyl or cassette.
While you may feel justified going the illegal download route, and have no ethical qualms about it; the fact remains - it is illegal. Not unlike purchasing a hard cover book and then shoplifting the paperback. A simplistic comparison - yes, but valid nonetheless.
All of this may leave us wondering - when it comes to our digital libraries, what are our rights?
As a general guideline, our rights are restricted to use and enjoyment. When you buy digital music, books and movies, you are in fact, licensing them for your use. Your rights to the digital version are determined by the license agreement.
This differs from a physical purchase where you have rights granted by copyright law, allowing you freedom to do with the purchase what you will. The doctrine of First Sale applies and provides that the publisher of the physical media has no control over what you do with the product once you have bought it.
That said, the appearance of venues to facilitate the resale of digital goods may lead to changes in the law.
Platforms such as ReDigi are designed to provide a place for consumers to resell their digital products, and companies like eBay and Redbox are spearheading an effort to enact "You bought it, you own it" legislation regarding digital purchases.
If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at plamont@peterlamontesq.com We answer legal questions on a daily basis and would be happy to discuss any issues or questions that you have with you.  Offices in: New Jersey New York, Colorado & Puerto Rico.  Affiliated throughout the country.




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