Users take their Digital Items to the Grave

In the analogue world, record, video or book collections could easily be passed on to family members or friends. However, in the digital age of MP3 files, digital films and e-books, this occurrence seems to be a legally grey area. “The question who owns the rights on purchased data after the death of the buyer is not specified and is therefore a grey spot in the law”, Maximilian Schubert, the secretary general of the ISPA (Internet Service Providers Austria), tells futurezone.

No Regulation
The attorney, who specializes in IT law, sees the handing down of iTunes accounts as “not completely resolved”, and therefore the question of inheritance remains open. In the 18 page Austrian iTunes terms and conditions, not a single reference to this subject can be found. The user regulation merely states that “iTunes products are only made available through a license” and that they are intended for “private and not commercial use”. Apple also mentions a number of collection societies, such as AKM and Austromechana, if further information is required.

Schubert thinks that this reference is particularly problematic. The reason for this is that the collection societies would try to conserve the pre-digital commercial application. “In the last years, the collection societies` will to reform was restricted primarily to the question of copyright violations. From our point of view this is a shortcoming”, says Schubert. “The discussion about the handing down of digitally purchased data” once again makes it clear, how behind the times, let alone `internet-fit`, the copyright law is.

The passing on of Data is not Impossible
The possibility of handing down iTunes accounts and their content was mentioned by a number of attorneys in discussion with futurezone. “In the event of a universal succession, it should be possible for an heir to have the account, including the contents, written over to him or her”, assures the IT attorney Stephan Winklbauer. However, the terms and conditions prove to be a hurdle that still has to be taken.

“Of course, the provider, in this case Apple, could control the use of the content by having a terms and conditions constraint, for instance, that music tracks, movies or even apps could be used only for a certain time.” In this case, the user would not actually be `buying` the content but rather be leasing it. Therefore, the copyright owner keeps the “right of distribution”, which makes the giving away of the content impossible. In the situation of inheritance it is therefore necessary to clarify if Apple has a clause that limits the use of content to the buyer`s lifetime, which might mean that they could avoid the “selling” of the content altogether.

“All rights End after Death”
While the Austrian iTunes terms and conditions do not give any clues as to what happens with an account after the user`s death, the Austrian user conditions of iCloud are clearer. “You agree that your account is not transferable, and that all rights of your Apple ID and its content end with your death. After an admission of the death certificate it is possible to cancel the account and delete all its content.”

Following an inquiry of futurezone about the possibility of handing down iTunes content after a user`s death, Apple responded by once again referring to the iTunes terms and conditions. At the same time, the firm underscored the aspect that the buyer is purchasing a license, and thus the ownership of the content cannot be transferred to a third party.

Nation Laws are Crucial
Another factor that makes the issue even more complicated is that national and European laws and guidelines vary, and the fact that Apple cannot bypass these laws. The Austrian terms and conditions, for instance, state that audio play lists can be copied as many as “seven times”, and that the produced CD(s) can be used (according to the Austrian copyright law) as a “CD that was bought normally from a retail store”.

The Austrian copyright law refers to an entitlement to circulate content (§ 16). This entitlement refers to the production and circulation of individual copies (maximum 7) (§ 42) and according to legal experts means that CDs containing iTunes music can definitely be handed down. However, the DRM-free music selection on iTunes has made the subject of giving away songs to relatives and the further use of these much less substantial.

The Transmission of Account Data is officially Forbidden
The safety precautions surrounding iTunes movies, as well as the apps (which have so far been neglected in public discussions) is another complicated aspect. The reason for this is that these types of content can only be used with the account with which they were bought. Of course, it is possible to leave the access data to others, but according to the terms and conditions of iTunes, it is prohibited to give away one`s account information.

It is also interesting to consider if legally purchased digital content can be sold to the data medium world in analogue form. For instance, Amazon`s copy protection is disputed because is makes the passing on of e-books illegal. The online retailer uses the concept that digital books, which are bought on Amazon, are actually only being leased.

Selling of Used Software Licenses is Legal
Besides US stores offering used MP3 data, the European courts have considerably contributed to the changing of this situation. They have decided that the further sale of digitally purchased software licenses should be allowed.

The judges concluded that it does not make a difference if a software is sold in a digital or physical form. “According to the principle of exhaustion in the current copyright law, it is not possible to limit the distribution of a work as soon as it has already been distributed in the EU with the copyright owner`s consent,” explains legal expert Winklbauer. In other words, this means that the originator can no longer decide whether the buyer of a book, a CD or a software can resell or give it away, after it has been sold for the first time.

EuGH Judgement vs. iTunes Terms and Conditions
To what extent the EuGH (European Court of Justice) decision will effect the sales of apps in the iTunes store and other stores such as Google and Microsoft is still uncertain. Legal experts presume that the argumentations in this controversial case between the UsedSoft (which sells used software) and Oracle is comparable to the app ecosystem of Apple and others.

“The iTunes terms and conditions contain certain opposition to the EuGH judgement of UsedSoft. The question remains, how far reaching the limitations of the terms and conditions can be agreed on”, says Schubert. Apple has not yet answered an inquiry by futurezone concerning this subject.