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

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IV. WHAT CAN YOU DO WITH YOUR DIGITAL CONTENT?

In order for Bruce Willis's children to acquire his digital music, our analysis so far shows that his executors will have to overcome several hurdles. The first is access to his iTunes account: without access to the account and the ability to use the account as Mr. Willis himself, his family will not be able to download the content that is stored in the account. (160) This hurdle is perhaps overcome because Mr. Willis's children will have the iPods he owned (though these devices may not contain his entire song collection), but even then the family faces another hurdle: restrictions on the digital content imposed by the EULA Mr. Willis accepted as a condition of using the iTunes service, and restrictions imposed by copyright law. If unable to overcome these hurdles, Mr. Willis's daughters will only be able to listen to their father's music by using his iPods, until the devices themselves fail and the music is lost.

As previously discussed, what happens to a person's property when the person dies is determined by state-specific wills and probate law and general property law. (161) That is why the Ellsworths' and the Stassens' primary recourse for gaining access to digital content was their local probate court. (162) These laws, however, only apply to a person's property; if the person does not own the property, he or she cannot pass it on at death. (163) As the previous section shows, what an iTunes or Amazon.com consumer owns is determined by the service's EULA, and thus examining the EULA is the starting point.

A. The Account Itself

As the Ellsworth, Stassen, and Daftary cases illustrate, there are two separate but related aspects to a deceased user's account: access to the content in the account, and ownership rights to the account itself. By "ownership rights" we mean that a survivor be named the registered user of the account; as we determined in the previous section, in most cases the deceased user did not own the account at all, and the account only represented a license to use a service. (164) As the registered user of a deceased user's account, the user's descendents would have no issues accessing the contents of the account. But to become the registered user might be impossible; thus the descendants' only recourse might be to gain access only to the contents of the account, which itself might be difficult to impossible.

The ideal scenario would be as follows: the deceased has, in a will or other suitably testamentary document, expressed the desire that his or her iTunes or Amazon.com account should pass to the person's friends or family. The person has ensured that his or her executors have all the necessary passwords. Yet for a person's survivors to access his or her account, and essentially take ownership of the account, is to transfer the account. As we have seen, transfers do not appear to be permissible for iTunes and Amazon.com accounts. The best the family can argue is that they have clear intent by the user to pass on his or her accounts, but they would have to make this argument in a probate court. The Stassen and Ellsworth probate judges both upheld non-transferability clauses, and though these opinions did not establish binding precedent, they are nevertheless an indication of which way a challenge might fall. The Stassens and the Ellsworths also did not have any clear indication that their children consented to having their parents access to their accounts; the Daftary case, which also does not establish precedent, indicates that probably the legitimate executors of the deceased's estate may not be able to grant consent.

Perhaps, however, the friends and family of the deceased can at least get access to the account. By way of example, Apple's EULA provides that "[y]ou may not use anyone else's Apple ID, password or account without the express permission and consent of the holder of that Apple ID." (165) Thus if a family member has an Apple ID, and the deceased's testamentary document is sufficient to grant consent to access the deceased's Apple account, then the family member can access the deceased account. …