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

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