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Whose iTunes is it anyway?

The ownership of digital assests in death is not so straightforward.
Most people would expect that when they die they could pass on their iTunes, eBooks and movies to their loved ones. Right? In fact, it may not be as straight- forward as you think…
We know that we can pass on tangible items such as CDs, family photographs and DVDs. These, along with many other items or property, can be bequeathed to someone in your Will. So far, so good. But what do you do when you wish to pass on something that is digitally stored in, say, your smart phone or your computer? On the face of it, you would think that there would be no problem. Or perhaps you haven’t given it any thought. I suspect for many it is the latter.
As a Solicitor who drafts wills on a regular basis I have been asked about the issue of “digital inheritance” and, in particular, leaving legacies of digital, non-tangible items such as iTunes, e-books and movies.
Did you know that when you purchase your iTunes and other digital items only you have the right to use them? You do not actually own them. Essentially you are purchasing a licence for the use of your digital items. That means you do not have the automatic right to pass them on to someone else.
This is probably news to most people. After a time-consuming plough through Apple’s terms and conditions, I can bring the following clause to your attention:
“You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Licensed Application and, if you sell your Mac computer or IOS device to a third party, you must remove the Licensed Application from the Mac computer or OIS device before doing so.”
Apple’s terms grant you a licence only to listen to the music, which is not transferable on death. 
Amazon’s Kindle licence expressly prohibits anyone from passing on downloaded eBooks.  They state:
“Unless specifically indicated otherwise, you may not sublicense or otherwise assign any rights to the digital content or any portion of it to a third party.”
These terms are 100% legal, but how many people actually read them, never mind understand them?
It is predicted that by 2020 a third of all music will be stored online. Already there is a  trend toward e-books. All the evidence shows our lives are being spent more and more online.
From a legal perspective, this all means a major change to how wills have traditionally been drafted. We have to move with the times when estate planning to reflect this new regime.
Recent research by cloud computing company Rackspace has suggested that in the UK, the value of the collective “digital inheritance” exceeds £2.3 billion. 
A poll of 2,000 adults found that 25% had more than £200 worth of films, video and music stored online. Some of the adults interviewed regarded their collections as valuable enough to pass on to someone else. Some had included internet passwords in their wills so their loved ones can access their online accounts. That in itself can be problematic. Once a will is registered it is in the public domain and therefore the passwords are not secure. 
Problem solving – is there an answer?
You may be reading this article and thinking,  “Well, why not just pass the device and my account passwords to someone else when I die?”  You can of course pass on the device itself via your will but what about the digital content? Consequently, that could amount to a “breach of security”. It may not be a direct breach of the terms of the contract, but Apple or another provider may take the view it is a breach and may terminate your account privileges and access to the stored material.  
Others suggest storing your account details with an “Account Guardian” to create a secure list of your online accounts. Doing so could help decide who is to receive your accounts and ensure they are passed on to whom you choose. This could assist with family photographs, personal intellectual property rights and some other valuable information and items but it still does not solve the potential breach of contract in regard to iTunes, movies and e-books.
It has been recognised in England that there is a real risk of online files being lost should their owner pass away. To add insult to injury, when a person dies their estate may still be liable to membership and subscription charges funded by regular credit card transactions or PayPal accounts. We have heard of systems of digital asset auditing being implemented so that any assets held online can be kept securely for future use. Again, valuable information other than iTunes, e-books and movies can potentially be stored securely using this method.
We can pass on other items such as family photographs stored in our computers and other commercial items as well as the tangible items such as smart phones and computers in a valid will. This remedies part of the problem but, so far, there is no clear answer for transferring your iTunes, e-books and movies to someone else. This is all the more reason why if you already have a will, it is important to update it. If not, you should contact your solicitor to arrange for your will to be drafted to reflect your own personal circumstances and lifestyle.