For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Friday, 31 August 2012

Digital libraries as modern Charon's obol?

Coins and major digital libraries are accepted here 
As recalled by the relevant Wikipedia entry, Charon's obol is an allusive term for the coin ancient Mediterranean civilisations (notably the Greeks and Romans) used to place in or on the mouth of a dead person before burial. The coin was meant as a payment or bribe for the ferryman (ie Charon, as also notably featured in Dante's Inferno) who conveyed souls across the river that divided the world of the living from that of the dead. 
Like the coin which was buried with the dead person, it seems that a similar fate may now be reserved to one's own digital libraries.
A few days ago an intriguing article was published on The Wall Street Journal, attempting to provide an answer the following question: Who inherits your iTunes library
Well, the response seems to be ... no one. 
As is well known, analogue copies of books and music (CDs, vinyl) pass into the hands of one's own heirs upon death. However, this may not be the case when it comes to iTunes or Kindle libraries. In fact, purchasers of digital works just get a licence to use the digital files, but do not actually own them. According to Amazon’s terms of use, “You do not acquire any ownership rights in the software or music content.
So, can you transfer what you don’t own? According to Apple's terms of use, the answer seems to be negative The use of digital files is in fact limited to Apple devices used by the account holder. This means that the licence acquired is non-transferable. In other words, "if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter."
As observed by TechDirt
"It is this non-transferability of the content that is the stickler. If you cannot transfer your digital files to another person then you cannot technically bequeath them to an heir. However, you can still leave your entire account to someone else, but even that might hit some issues if the terms of service don't allow it. Steam is one example of a service that does not allow for the transfer of accounts, even in whole. Valve is willing to kill an account, swallowing up all money spent on it rather than letting someone other than the original owner getting a hold of it."
Fran's terrified her kittens won't be 
able to inherit her digital copy of 
The Best of Take That  
TechDirt also recalls that the issue of transferability of licences has been recently appreciated under the lens of EU law in the decision of the Court of Justice of the European Union (ECJ) in Case C-128/11 UsedSoft (see IPKat post here). On that occasion, the ECJ held that the grant of a licence for an unlimited period is akin to a sale. However, it also ruled that the first purchaser of a licence is not authorised by the effect of the exhaustion of the distribution right within the EU to subsequently divide the licence he has acquired. So, the grant of a licence is tantamount to a transfer of property, but this type of property has very peculiar features which make it more limited than traditionally intended 'property'.

This being the current (controversial) scenario in the EU, in the US the situation is clearer (although not in favour of potential digital libraries’ heirs). In 2010, in Vernor v Autodesk, the US District Court of Appeals for the 9th Circuit  ruled in fact that "a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions."
It is apparent that what is going to happen to one’s digital libraries upon his/her death has the potential to become a truly problematic issue. Whilst waiting for greater legal and judicial clarity, there have been recent attempts (to try) to avoid the possibility that digital libraries may follow their owner in the afterlife. Initiatives have in fact been undertaken to help estate planners to create a legal trust for their clients’ online accounts that hold music, e-books, movies … and (digital) coins. One example is the recent launch of Dap Trust in the US. 

2 comments:

Robert Cumming said...

I think the characters in Weekend At Bernie's may be on to something...

Eleonora Rosati said...

:-)

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