Digital assets post-mortem

Philippa Warr, CREATe, United Kingdom

PUBLISHED ON: 14 Oct 2014

The way we handle digital assets post-mortem is a young field of inquiry and, as one might expect, beset with similar problems to those which accompany most kinds of digital legislation. There are issues of ownership, of jurisdiction, of intellectual property and more. Privacy is also of central significance to discussions of access to our password-protected digital accounts.

Yahoo’s ‘no right of survivorship clause’

In a recent blog entry, it was reported that multinational internet company Yahoo pushed back against a piece of model legislation designed to give legally appointed executors or fiduciaries the same access to digital assets as they would have to tangible assets. Currently Yahoo's terms of service include a no right of survivorship clause which states "Your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account will be cancelled upon your death. If we receive a copy of a death certificate, the relevant account may be cancelled and all its contents permanently deleted."

Yahoo's Senior Legal Director Bill Ashworth argues that "[the Uniform Fiduciary Access to Digital Assets Act] does not ensure the privacy of sensitive or confidential information shared by the decedent or third parties" and agrees with an assessment by NetChoice's Carl Szabo that the Act would set default privacy to zero. In fact, the Act does limit access by the fiduciary if the deceased signed up to a separate agreement limiting said fiduciary's access.

Post-mortem privacy

Obviously that particular debate is taking place in the United States and involves implementing US model law, but the issues it demonstrates have universal relevance. Research being conducted by Edina Harbinja – a PhD student at the University of Strathclyde – in this field has led to new terminology – post-mortem privacy – becoming part of the broader discussion.

If you're reading this and aren't sure what digital assets actually means, it covers information goods associated with the online or digital world. In other words it means emails, tweets, Facebook profiles, LinkedIn exchanges, World of Warcraft items, e-books, account passwords, domain names, Livejournal icons, avatars, YouTube videos, exploits for software and games… It means almost everything which makes up your online presence.

What happens to these assets after death is important on both an emotional and an economic level. For some types of assets – photography accounts, for example – the value would normally be limited to family and friends of the deceased.

For assets which were used in running an online business, resolving access and transfer of ownership may be vital to keeping that business afloat. There are also composite cases. One example is an online gaming account. The items and avatars contained within that account can express much of the deceased’s personality and be heavily linked with their social life. But in-game assets can also have real financial value – plots of virtual land or rare items which can be auctioned for money. There have already been moves to address some of these issues. Harbinja goes into more detail on these in an Internet Policy Review research article on virtual worlds.

Intellectual property on digital assets post-mortem

Copyright issues and intellectual property come into play in two major ways. One relates to whether the deceased is the author of the content and the other is whether the content has been created by someone else.

With the former, email is a useful example. If someone dies, their family or friends might request access to the email account in order to go through or save the data. The digital version of going through the deceased person's papers. One interpretation of the contents of email in this scenario is as copyrighted material, the rights to which can be transferred to heirs on death.

The exact nature of email content under law is not a straightforward matter, though. A case of note in this area when it comes to UK law is Fairstar Heavy Transport N.V. v Adkins. In the original judgement on the Fairstar case, Justice Edwards-Stuart concluded that the content of emails forwarded to a former employee's personal email address was information which was not capable of being property (intellectual or otherwise). The company which was demanding access to these therefore had no proprietary right to that content. In a Court of Appeal ruling, however, the court concluded that the debate about whether the content of email constituted property or information was actually irrelevant to the case at hand. "It was not necessary to decide the property issue in order to make the order for inspection or copying," stated Lord Justice Mummery. He also said "It would be unwise, for example, for this court to endorse the proposition that there can never be property in information without knowing more about the nature of the information in dispute and the circumstances in which a property right was being asserted. Some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life."

The prevailing approach at the moment appears to be one of granting access on a discretionary basis. That access generally comes in the form of sharing the contents of the email account with the deceased person's relative or friend without sharing other details such as account login details.

Content authored by a third party

In terms of content which was not authored by the deceased, such as collections of digital music, games, movies and so on, licensing tends to come into play. With some services the temporary nature of access is more obvious than for other services. Spotify lets subscribers stream an unlimited amount of music in exchange for a monthly fee. If you stop paying the fee you lose that unlimited access. In other words, it's pretty obvious you don't own the content itself, you're just paying to access it for a specific time.

When it comes to music files you buy via a service like iTunes or games via the platform Steam, the process is less obvious. You could theoretically own those products for the rest of your life. They feel closer to being possessions – a digital analogue to a CD or a disc. But many of these services have terms and conditions or end user license agreements which generally make it clear that the contents are provided under license. There is a limited, personal usage right but you don't actually own the content and ownership of the licences upon death are non-transferable.

Some companies are taking steps to actively engage with the problem of how to handle digital assets and items which might be considered property when the original owner dies. Facebook has an option for friends or family to have the deceased person's page memorialised (effectively, that page is frozen in time). Linden Lab has instructions for users of its virtual world, Second Life, who wish to bequeath their account when they die. Explicit discussion of what happens to digital assets after the death of the account holder or creator is the exception rather than the rule at present, though.

We spend significant portions of our lives curating and creating these digital assets. As we move more aspects of our work and life into digital formats we will need to negotiate the tensions between existing law, the desires of content creators, practical concerns like storage space and the requests of those close to the deceased – perhaps even conflicting requests laid out by the deceased. Harbinja's work has currency, as it it is being conducted with the goal of analysing the present situation and making recommendations for how we might proceed.

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