For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 12 April 2013

Digital afterlife: what can/will you leave to your beloved ones?


Although this topic might appear slightly gloomy (especially on a Friday afternoon), it is something which has been attracting a good deal of attention (including controversy) lately.

With a post published yesterday on its Public Policy Blog, Google announced the launch of "a new feature that makes it easy to tell Google what you want done with your digital assets [eg, photos, emails, documents] when you die or can no longer use your account." 

The tool in question is called Inactive Account Manager (and has been promptly nicknamed Google Death Manager) and is intended to function as a sort of digital will.

By using this feature, you can in fact decide if and when your account is treated as inactive, what happens with your data and who is notified. You can set a timeout period of 3-6-9-12 months, after which you account can be classed as inactive. Following a 1-month warning, your data will be shared with a friend or family member designated when you enabled your Inactive Account Manager, or your account will be deleted entirely.

As reported by The IndependentFacebook already has a function that allows friends and family to "memorialise" an account once its owner has died. It is worth adding that also legislative initiatives have been recently undertaken in this respect, as is explained by Forbes.

The introduction of Google Inactive Account Manager looks particularly interesting in the context of the broader and fascinating debate on ownership of immaterial goods (including emails), applicability of EU exhaustion / US first sale doctrine  and what is going to happen to digital libraries once their proprietor has passed away.

This Kat has been following discussion on ownership (or lack thereof) of immaterial goods for some time. Readers sharing her same interests will remember that specific Katposts started flowing after the article that the Wall Street Journal published last summer, addressing an issue of fundamental concern to many people: Who inherits your iTunes library? 

Merpel has always liked analogue libraries
best as you cannot hide in digital ones
At the time the question just received the laconic response: "Nobody". This raised concerns among many people, including (but sadly the rumours soon proved unfounded) Die Hard hero Bruce Willis.

Unfortunately (although this depends on the perspective you wish to adopt), not only this answer has not changed, but has received judicial confirmation (following a bit of Kat astrology) in the US a few weeks ago, when the US District Court for the Southern District of New York issued its decision in Capitol Records v ReDigi (noted here and here), holding that the first sale defence is limited to material items. 

Prior to the ReDigi decision, in 2010 the 9th Circuit issued its judgment in Vernor v Autodesk (a case concerning promo CDs), in which it ruled that, pursuant to 17 USC §109(d) the first sale doctrine does not apply to a person who possesses a copy of a copyright-protected work without owning it.

In this respect, it is significative that the terms and conditions of digital marketplaces (eg Amazon) provide expressly that no ownership rights are acquired in the software or music content.

In Europe the scenario, despite last year's controversial CJEU decision in Case C-128/11 UsedSoft, might not be so different from the US, since the particular interpretation of the principle of exhaustion provided by the Court therein related expressly (yet solely?) to the Software Directive

This Kat is under the impression that there are more people thinking that they own their digital files than people who don't. Being unable to resell them can thus be frustrating,but in the years to come it might become even more frustrating to think (and accept) that one's own digital legacy is destined to (legal) oblivion.

In the meanwhile, the possibility offered by Google to decide what is going to happen to one's own account upon death (or other circumstances resulting in online inactivity) seems something to be welcome. 

1 comment:

Ken Moon said...

Based on the CJEU decision in UsedSoft I think the situation for Europeans holding iTunes and the like will be different from that in the US (whatever that situation is). Before applying the 2009 Software Directive the CJEU held the licence amounted to a sale of the copy possessed by the user. This logic (which I disagree with) must equally apply to copies of digital content as it does to a software file delivered by download. Thus the downloader from iTunes (under licence) will own the copies they have downloaded in Europe and can pass them on to their hiers on death.

However they will not be able to resell, because exhaustion under the Software Directive will not apply to other than computer programs.

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