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Authors

Claudine Wong

Abstract

In early September, 2012, multiple news agencies reported that actor Bruce Willis was going to sue Apple for the right to pass his iTunes collection to his children upon his death. While the story ultimately proved to be false, it begs the question: Can Mr. Willis actually pass his iTunes songs, legally purchased but subject to a license agreement, to his daughters? We are increasingly acquiring digital music and e-books, copyrighted digital content with legally well-understood physical equivalents. As users pass away, their families are left to wonder if or how they can gain access to the deceased person’s digital assets, a problem they do not have with old fashioned physical assets.

In their traditional, print media format, music and books are protected by the first sale doctrine: when the owner passes away, his or her children can inherit that content; the children can then sell, give away, or discard the content. The publisher of the content cannot interfere with either the inheritance or the children’s ultimate disposal. The purchase of digital media, however, is universally governed by an “end user license agreement” or EULA. The purchase also universally requires creating an account with the content provider, an account also governed by a EULA. How do these EULAs restrict Mr. Willis’s ability to pass on his digital content? Can his children simply take control of his accounts, and thus have access to the content just as he did? Does the first sale doctrine apply to the digital content, thus allowing Mr. Willis to pass on his digital content, and his daughters to do with it as they like? We will conduct a careful examination of the EULAs for the most popular providers of digital music and e-books in attempt to answer the first two questions. The third question has, for the time being, been answered by Capitol Records, LLC v. ReDigi, Inc.: No, the first sale doctrine does not apply to digital media, it only applies to material objects.

A bare handful of states have passed legislation, in an attempt to deal with digital assets at depth, but these laws are too narrow to cover Mr. Willis’s situation. Thus it is left to the consumers to form digital estate plans. It is also left to the content providers to address the death of their users, either in their EULAs or in some other system.

Upon conclusion of this analysis, this paper will attempt to answer: Can Bruce Willis, in fact, pass his iTunes collection to his children?

 

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