THE AUTHOR
Braden Johnson
Don’t Stop the Music: iTunes and Probate Law
Clients should be advised from the beginning that attempts to bequeath their iTunes Library may be futile under current copyright laws and Apple’s terms. BY BRADEN JOHNSON
As computer-savvy adults begin drafting wills, attorneys face the
challenge of addressing what will happen to a client’s digital music
and movies upon the death of the user. Probate courts across the
country are well equipped to distribute the decedent’s vinyl records
and VHS tapes, but face unknown territory when attempting to
distribute the digital versions of such media, as downloaded through
Apple’s iTunes Software. This software has recently become the
number one music retailer in the United States.
It is easy to understand why copyrighted digital media should be
protected from illegal distribution. The high profile legal issues
faced by Napster and BitTorrent provide good object lessons on the
problems associated with blatant violation of copyright law. But
bequeathing lawfully-purchased digital media upon death is entirely
different than making and distributing illegal copies of the media,
just as passing a cherished painting on to a grandson is different
than putting the painting under a copy machine and handing out
duplicates.
This issue is especially complex because it invokes questions of
copyright, probate, and contract law in a rapidly developing,
tech-heavy atmosphere. Justice Breyer said: “Judges have no
specialized technical ability to answer questions about present or
future technological feasibility or commercial viability where
technology professionals, engineers, and venture capitalists
themselves may radically disagree ...” The effects of this
technological confusion were summed up by an estate planning
attorney who said, “The law is light-years away from catching up
with the type of assets we have in the 21st Century.”
RESTRICTIVE LICENSE AGREEMENTS
Clients likely assume that they own the digital media files in their
iTunes Library, and can distribute them through a will as an asset;
however, files purchased through the iTunes Store are not actually
owned at all. Instead of selling a lawfully-made copy of the
copyrighted media, Apple sells a license to use the media in a very
restricted way. This license, like licenses generally, expires upon
the death of the licensee. Because the decedent has no claim of
ownership or license to the media, it cannot be distributed.
Apple further clarifies this license through the Terms and
Conditions entered into by iTunes users. In order to download the
iTunes Software, users agree that they will not “… rent, lease,
lend, sell, transfer, redistribute, or sublicense …” digital content
purchased or rented from the iTunes Store. Apple asserts that, “If
you breach this restriction, you may be subject to prosecution and
damages.” Although courts have not ruled on this contract, it
appears that legal liability can attach to estates which distribute
media purchased from the iTunes store.
DIGITAL RIGHTS MANAGEMENT
Clients likely assume that the digital files can be moved to their
beneficiaries’ computers and enjoyed after their death. However,
encryption technologies that accompany digital media purchases
prevent this type of transfer. Apple’s version of encryption, called
“digital rights management” software (DRM), limits a consumer’s
ability to share or transfer digital media purchased from the iTunes
Store by preventing any one song from being played on more than five
computers or copied onto compact discs more than seven times.
Because of the DRM software, simply moving a media file from one
computer to another is not sufficient to use the file on the second
computer. Therefore, even if a beneficiary receives the decedent’s
hard drive which contains his or her iTunes Library, the beneficiary
cannot play media that was downloaded from the iTunes store without
entering the decedent’s username and password. These credentials
frequently change, and it is likely that neither the estate, nor the
beneficiary will be able to supply the correct password to authorize
such a transfer. Additionally, the user and the estate are still
bound by Apple’s terms which attach liability for such a transfer of
media from one user to another.
ADVICE
Clients should be advised from the beginning that attempts to
bequeath their iTunes Library may be futile under current copyright
laws and Apple’s terms. Clients who wish to distribute digital media
after their death should be encouraged to purchase physical copies
of media, which can later be uploaded to their computer and played
in iTunes. They should be instructed to keep the physical copy of
the media, which can be transferred to their beneficiaries without
issue. Lawfully-made, physical copies of copyrighted material like
books and CDs are governed by Title 17 of the United States Code,
which allows owners to sell, transfer, or otherwise dispose of their
property in any way, as long as it is not done for purposes of
commercial advantage.
Some clients may be tempted to purchase programs like Tunebite,
Noteburner, or SoundTaxi which remove the DRM software from iTunes
media. Others may consider writing their entire iTunes Library to an
MP3 CD which, when loaded onto another computer, sheds the DRM
software. After shedding the protective software, the media would
play on beneficiaries’ computers, but the transfer would still be
prohibited by Apple’s terms. Additionally, any attempt to circumvent
copyright controls, such as Apple’s DRM, is illegal under the
Digital Millennium Copyright Act.
A new product offered by Florida Attorney David Goldman provides a
method for distributing iTunes media after death. Goldman has
created a product called a “Digital Asset Protection Trust” which
incorporates media purchased from iTunes into a trust that retains
the license to the music after the original purchaser’s death. This
technique has not been tested by the courts, but it represents one
of the few solutions to this issue.
The future may bring new methods for solving this problem. The
Electronic Frontier Foundation has proposed policy changes that
would facilitate the distribution of digital media after death. They
advocate the concept of “first sale,” which would treat
lawfully-made copies of digital media just like lawfully-made copies
of physical media. This would allow digital media to be sold,
transferred, or otherwise disposed of, so long as it was not done to
gain commercial advantage. Apple may still be able to shirk this
attempt by continuing to sell only a license to use the media
instead of offering a lawfully-made copy for sale.
About the Author
Braden Johnson is a first-year law student at the Saint Louis University School of Law where he serves as the Student Chaplain.
While pursuing his Bachelor’s Degree in Political Science from Brigham Young University in 2011, he was a featured author in the BYU Prelaw Review Journal.
Braden can be reached through his webpage at:
about.me/bradenwj
