Can Bruce Willis Leave His iTunes Collection to His Children? Inheritability of Digital Media in the Face of EULAs

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TABLE OF CONTENTS   I. Introduction II. Digital Assets and Death of the Consumer     A. What Are Digital Assets?     B. Death of the Consumer III. What Do You Own?      A. The License Agreements         1. Apple: Music and E-Books         2. Amazon.com: Music and E-Books         3. Barnes & Noble: E-Books         4. Google: Music and E-Books     B. Conclusions IV. What Can You Do With Your Digital Content?     A. The Account Itself     B. The Digital Content: Two Wrinkles        1. The First Wrinkle: First Sale of Digital Content?        2. The Second Wrinkle: Digital Rights Management V. Where Do We Go From Here?     A. State Legislation and the Uniform Law Commission     B. What Every Person Should Do     C. What Every Content Provider Should Do VI. Conclusion 

I. INTRODUCTION

In early September, 2012, several news outlets erroneously reported that actor Bruce Willis intended to sue Apple, Inc., for the right to will his iTunes collection to his children. (1) The Willis family immediately denied the rumor, (2) but this story left the technology and legal communities with a question: Can Mr. Willis actually leave his iTunes collection to his children?

There is a great deal of confusion and misinformation about this question. For instance, one often repeated assumption is that an iTunes consumer does not own the songs he or she buys; (3) a careful reading of the license agreement indicates that this is not the case. (4) The confusion stems in part from uncertainty in the law, which has not kept pace as copyrighted material has moved from wellunderstood, printed formats into the digital realm. (5) The confusion is also caused by consumers not understanding, or--far more likely-not having even read the "end user license agreement" (EULA) that he or she agreed to when registering for a service such as iTunes. (6) The uncertainty is exacerbated by lack of clarity in the EULAs themselves. The majority do not even address the death of the consumer who agreed to it. (7)

Why do the EULAs even matter? After all, in Western culture individuals have had the ability to purchase printed or inscribed words for thousands of years. (8) Though sound recordings were only granted federal copyright protection since 1972, (9) consumers have been able to purchase them for over a century. (10) Thanks to this long history, consumers have an expectation when they purchase books and music CDs: once purchased, the consumer owns the book or CD, free from any contractual obligations. Yet the inverse is true for digital music and e-books: the purchase of digital content is universally governed by EULAs. The EULAs may impose restrictions on a person's ability to pass his or her digital music and e-books at death, restrictions that do not exist for traditional media books and music. (11) In addition, a close reading of the EULAs for what are today some of the most popular providers of digital music and e-books--the Apple iTunes Store, Amazon.com's Kindle e-books and MP3 Store, Barnes & Noble's NOOK e-books, and Google Play Store's music service-reveals that, unlike traditional printed books and CDs, cassettes, or vinyl LPs, the consumer may not in fact, actually own what he or she has purchased. (12)

Another key difference between traditional, print media and digital media is that a consumer can only purchase digital content by establishing an account with the content provider. (13) The account itself is also governed by a EULA, typically a different document than the one governing the purchase of the content, and thus having distinct issues. The most important of these issues is that access to the account generally gives access to the digital content purchased through the account. Thus it is important to know: can the consumer pass on the account itself, or at least pass on control of the account, to his or her heirs at death? of course, once purchased, the consumer typically (and legally) transfers the digital music or e-book onto a device such as an iPod or Kindle e-reader, and thereafter the consumer generally does not have to log into the account again. …