Saturday, August 23, 2014
Last week Delaware Governor Jack Markell signed into law legislation permitting Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the same way they would be given access to physical documents. Yet many people do not realize that our Twitter, Facebook, and email accounts are not our only online assets.
The new Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to family and friends after death. While the bill broadly states digital assets include “data, audio, video, images, sounds, computer source codes, computer programs, software, software licenses,” the law also states these assets can be controlled by the deceased’s trustees only to the extent allowed by the original service’s end user license agreement (EULA).
I have previously stated that the Delaware statute does not override this feature of Amazon’s, or most, EULAs, which are protected by other forms of federal law. The bill is not designed to change an asset you could not transfer into one you can.
Although tech companies have been dealing with some of the issues surrounding the accounts of the deceased, they have not specifically addressed the effect of EULAs on the fate of any products purchased with those accounts after someone has passed. For now, estate planners are coming up with creative solutions. Some planners suggest setting up a trust and using it to purchase digital assets. In naming themselves and children as trust beneficiaries, they can pass down e-books or music without breaking any ban on third party transfers.
See Ariel Bogle, Who Owns Your iTunes Library After Death? Slate, Aug. 22, 2014.
Special thanks to Howard M. Zaritsky for bringing this article to my attention.
Friday, August 22, 2014
Kathleen Farro (Independent) recently published an article entitled, The ‘Digital First Sale Doctrine’: A Necessary Piece of the Digital Estate Planning Puzzle, (July 15, 2014). Provided below is the abstract from SSRN:
As technology advances, the aspects of our lives that are played out in the digital realm, both personal and professional, are ever-increasing. We conduct our banking online, we communicate with friends, family and business associates via email and social networks, and we create original, creative works on internet-based applications. Our creative work, professional work, and practical communications that were once limited to oral communication and paper records are now captured, conveyed, and stored digitally. Trading tangible media for the digital realm has become commonplace. Some changes are as simple as the box of photographs stored in the closet that are being replaced by expansive online libraries of digital photographs. On a grander economic scale, for example, is the marketability of a celebrity persona that was once measured by his or her ability to promote products in a newspaper print ad or on a television commercial. Now, the number of people accessing that celebrity’s life, opinions and preferences in the digital realm can have an equal or greater financial effect.
While this evolution can have many advantages in our every day lives – making thinking, doing, communicating, and working - easier, quicker, more efficient, and less expensive, it can also jeopardize things that we may take for granted in our purely "tangible" life. The digital age may decrease our actual, human interactions and compromise our privacy. It may reduce what may be considered "our property" in the tangible world to something owned and controlled by others when carried out in the digital realm. Within the conversion to a digital world, our property rights, and thus our ability to convey and devise those to others, may, quite literally, get lost in translation.
The property rights we most frequently give up to carry on life in the digital realm are those that are carried out and promulgated within a framework of copyright-protected material. For example: email, Facebook, Twitter, and various "gaming" activities are copyright-protected.
For estate planners, these facts present hurdles to carrying out the wishes of those who desire to transfer some of their digital "property" to their loved ones, friends, or others either by devise or within an inter vivos trust. For example, a man may spend years building an iTunes library of music. At $0.99 to $1.29 a song, and likely more in the future, he may invest thousands of dollars over the years in this collection. Upon his death or disability, he may wish to transfer this library to his children. The current law does not allow this; the point at which he himself is unable to use the library, there is no way in which any party can lawfully utilize that song library.
This paper will examine the property rights individuals generally hold in copyrighted material and digital copyrighted material. It provides a thorough explanation of the First Sale Doctrine as applied to tangible media and the limitations on its applicability in the digital realm. It then goes on to explain Congress’s first attempt at incorporating digital media into the First Sale Doctrine in 1998 – what conclusions it drew and why Congress declined to update the doctrine. Between technological advancements, court cases in the U.S. and overseas, and various other legal principles and practices, there are now substantial policy bases for revisiting a "digital" First Sale Doctrine. The implementation of a digital First Sale Doctrine would have far-reaching effects; however, for our purposes, this doctrine would at least provide individuals with assurance that their digital property can be preserved to pass along to others.
Thursday, August 21, 2014
Late Tuesday Twitter indicated it would be removing images and videos of deceased people at the request of family members; however, it put conditions on the policy.
Twitter made this announcement a week after the daughter of the late comedian Robin Williams said she would quit Twitter after she received repugnant images of her father from online trolls. The policy also comes after Twitter attempted to delete images and video depicting the gruesome death of U.S. photojournalist James Foley, who was killed by the militant group Islamic State (ISIS). “In order to respect the wishes of loved ones, Twitter will remove imagery of deceased individuals in certain circumstances . . . When reviewing such media removal requests, Twitter considers public interest factors such as the newsworthiness of the content and may not be able to honor every request.”
The policy compels the estate or a person’s family member provides documents, such as a copy of a death certificate and government issued identification. Yet Twitter continues to refuse to afford account access to anyone, even if they are related to the person who has died.
See Tim Hornyak, Twitter to Remove Images of Deceased Upon Request, IT News, Aug. 20, 2014.
Special thanks to Joseph Jacobson (Texas attorney) for bringing this article to my attention.
Monday, August 18, 2014
Ashley F. Watkins recently published an article entitled, Digital Properties and Death: What Will Your Heirs Have to Access to After You Die?, 62 Buff. L. Rev. 193-235 (2014). Provided below is an excerpt from the article:
It’s easy to assume that your digital things aren’t significant. After all, they take up virtually no physical space and you do not see them everyday. But as you live an increasingly digital life, this collection grows. It’s more than just computer data, it’s a set of artifacts that has the potential to chronicle your life.1
Twenty years ago, lives were chronicled by letters, photos, home movies, and other items that could easily be passed on from generation to generation. These tangible items held emotional value for families and were able to act as mementos after the passing of a loved one.2 Today, these items can—and frequently are—stored digitally on a computer hard drive, a photo storage site, an email account, or something along those lines.3 Although the method of storage has changed, these items are no less valuable than they were in the past.
Social media is changing death and funeral related social norms. Death is no longer a private matter for close family and friends, but is shared and commented on in a public sphere online. From the over three-million memorialized profiles on facebook to photos with comical taglines that show pictures of open caskets at funerals, some are concerned that social media has shifted the focus away from a respectful mourning of the deceased to an opportunity to express narcissistic tendencies of the user.
See Quentin Fottrell, When Death Meets Facebook: Social Networkers Upstage the Deceased, Market Watch, Aug. 16, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Sunday, August 17, 2014
Suzanne B. Walsh recently published an article entitled, Coming Soon to a Legislature Near You: Comprehensive State Law Governing Fiduciary Access to Digital Assets, 8 Charleston L. Rev. 429-449 (2014). Provided below is an excerpt from the article:
I. INTRODUCTION: WHY DRAFT A UNIFORM LAW ON FIDUCIARY ACCESS TO DIGITAL ASSETS?
The vast majority of Americans use the Internet and many have online access to their financial accounts. 1 Domain names and other digital assets can have significant monetary value. 2 It's now often more convenient to bank online than to bank in a branch office. 3 To prevent identity theft, fiduciaries must monitor and protect - perhaps simply by termination - an incapacitated person's or decedent's online accounts. 4 Most agreements governing online accounts ignore death and incapacity altogether, or worse, they provide for automatic account termination if either occurs. 5 Only seven states have enacted legislation specifically granting some fiduciary access to digital assets. 6 This means agents, conservators, trustees, and even personal representatives are often hampered when administering modern estates, trusts, and accounts. The management and transfer of digital and traditional assets accessed by or held in online accounts requires compliance with internet-based service agreements. 7 Since fiduciaries are obligated to collect and preserve the assets of the estates they manage, any impediments to access are potentially damaging. 8
Digital assets can also have significant sentimental value. Grieving family members and friends frequently search for answers, comfort, and support in the social media accounts of their deceased relatives and friends. For example, teenager Eric Rash's parents, Ricky and Diane Rash, were the driving force behind Virginia legislation that grants parents postmortem access to a minor's Facebook account content. 9 Others find comfort in saving and ...
Friday, August 15, 2014
Digital asset protection is a growing concern for individuals and planners. Last week, Missouri amended their state constitution to expressly protect “electronic communications and data” from search and seizure the same as other property. However, it is still unclear what the implications of this constitutional addition will be.
See Eugene Volokh, Missouri Voters Amend Constitution to Expressly Protect “Electronic Communications and Data”, The Washington Post, Aug. 6, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Thursday, August 14, 2014
On Tuesday, Delaware Governor Jack Markell signed legislation authorizing fiduciaries to access and control digital assets and accounts of those they represent. The law recognizes that more people are piloting more of their lives online, which can pose challenges when a person dies or becomes incapacitated. The new law permits fiduciaries to access email, social media, financial management, health care and other digital accounts.
Developed by the Uniform Law Commission, this law is the first of its kind in the country.
See Associated Press, Delaware Fiduciaries Gain Access to Digital Assets, The Washington Post, Aug. 12, 2014.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.
As I have previously discussed, virtual currency is a growing market with over 200 currencies for investors to choose from. The Consumer Financial Protection Bureau (CFPB) is now warning consumers of the risks of using virtual currency. In a Consumer Advisory issued on Tuesday, the CFPB, warned consumers of the risks of hackers, scams, and the lower level of built in protection when using virtual currency. The CFPB also informed the public that they can now report virtual currency related complaints to the CFPB’s consumer complaint database.
See Allyson B. Baker, Suzanne F. Garwood & D.E. Wilson, Jr., CFPB Issues Consumer Advisory Concerning Virtual Currency, Mondaq, Aug. 12, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Sunday, August 10, 2014
With the median cost of funerals over $7,000, families that are unexpectantly faced with the high cost after the sudden death of a family member may look to creative solutions to cover the cost. One option increasing in popularity is online crowdfunding. Crowdfunding websites allow for the family to create an online donations campaign. Sites that have become popular for funeral campaigns include GoFundMe.com and YouCaring.com. It is important for campaign creators to be honest and clear about the purpose and intentions for the donations, and to keep in mind that state and federal laws apply to the donation campaign promises.
See Kayleigh Kulp, Crowdfunding Funerals: What You Need to Know, Fox Business, August 8, 2014.