iPass away – do my digital downloads die with me?

by , Editor, Which? Computing Technology 20 February 2012
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If you’ve built up a proud collection of books, records and DVDs, you’d expect to be able to pass them on to your next of kin. But what happens to all of the downloads you’ve paid for during your life?

Skull and bones on computer screen

The digital afterlife is an uncertain business, it seems. We challenged both Apple and Amazon on whether digital downloads could be passed on after death, and neither could give us a definitive answer.

As more and more purchases are made in a digital, rather than physical form, we think it’s time for the main digital retailers to clear up our rights to pass on property we’ve paid for.

Purchasing a product, or renting a licence?

As it stands, the rights of iTunes and Amazon customers look pretty shaky when it comes to passing on downloads. If you buy a music track from a digital store, you’re essentially buying a licence to play that track – a licence granted to you only, which isn’t transferable upon death.

Legally you’re essentially just renting tracks – you don’t actually own them, as Matthew Strain of law firm Strain-Keville pointed out to us in the latest issue of Which? Computing:

‘We do not “own” what we purchase on iTunes, we only have the right to use it. The right to the “product” is therefore limited and passing it on to someone else is not likely to be accepted by Apple.’

The issue extends to the rapidly-growing ebooks market as well – Amazon’s Kindle licence explicitly forbids you from passing on your downloaded ebooks:

‘Unless specifically indicated otherwise, you may not sublicence or otherwise assign any rights to the digital content or any portion of it to a third party.’

Bequeathing your account passwords

So is there any way around this? The short answer is, yes and no.

It’s easy to pass on a physical device like an iPod or a Kindle, which will have music or books loaded onto it. However, if this device needed updating by accessing an account, the new owner could be left vulnerable to losing everything.

Ok, so why not simply hand over your account passwords, letting your next of kin access your iTunes or Amazon purchases? While this sounds simple, it can actually qualify as a breach of the T&Cs agreed upon when you set up an account. Matthew Strain explains:

‘Allowing others to have your account details is a breach of security as the contract sees it. This is not a direct breach of the terms of the contract, but Apple may take the view that it is and terminate your account privileges.’

The Cloud makes things foggier

Increasingly, the idea of storing files on a device you carry around with you will seem outdated – the move to Cloud storage, where files are stored remotely, makes it more essential than ever that we know where we stand when it comes to passing on paid-for downloads.

After all, if all of your files are stored remotely, and only accessible by you (according to a contract you signed when opening your account), handing your digital purchases over to loved ones upon your death becomes even more difficult.

Shouldn’t we be free to pass on our downloads to whomever we choose, just as they would with a physical product? As it stands, all of the rights seem stacked against the us.

40 comments

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George E.

All the more reason not to support DRM and to only purchase digital goods without it.

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Crispen

“To my grandson, I bequeath my original 2.5tb HDD, complete with every episode of the Simpsons.”

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Jim

To my grandson I bequeath my orignal 10TB HDD filled with porn.

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Em

One of the reasons this area is such a mess, is because format shifting without a special license is against the law in the UK. So you are not allowed to copy an MP3 track you’ve purchased off Amazon, for instance, onto another permanent medium such as CD for your own personal use, let alone gifting it to someone in your will.

HM Government is actually running a consultation on the recommendations made in the Hargreaves review and is inviting responses to a range of proposals by 21st March 2012.

Of particular relevance is the impact assessment relating to copyright exemption for private copying. The government’s preference is for Option 1, that would still limit format shifting to personal use. Option 2 would extend this right to the family household. No doubt the music industry has other views.

Find out more at ipo.gov.uk and get campaigning for a fairer system.

And why isn’t this opportunity for consumers to influence the law being highlighted by Which?

Hi Em, we’ve actually written quite a few times about the outdated copyright laws and how they mean it’s illegal to rip. We’ve argued that ripping should be completely legal and talked about the Hargreaves review on multiple occasions: http://conversation.which.co.uk/tag/ripping-music/

The most recent being this one by myself: http://conversation.which.co.uk/technology/copyright-law-ripping-copying-dvds-cds-film-hargreaves/

In theory if Hargreaves review is accepted in full, it could mean ripping DVDs is legal too – and why not? Allowing it for music CDs but not DVDs would be a double standard.

The last I heard the government had accepted the review in full, though it’s interesting to hear about those two options. Again though, it feels like the Hargreaves review is out of date – everyone rips CDs, what we need to talk specifically about are download rights, where a physical piece of media hasn’t come into it at all.

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Em

Hi Patrick, thanks for the quick response!

I’m not disputing that Which? haven’t highlighted the outdated copyright laws on a number of occasions in the past, but consumers currently have a limited opportunity to respond to the consultation documents, and not just sit on their hands and watch while the commercial interests slug it out. And if Which? have argued that ripping should be completely legal, will they be submitting a response to the consultation?

The IA I’ve just referenced even seems to have woken up to the existence of cloud services, where there is no physical medium involved – at least at the consumer end – although I feel the Government have not grasped exactly what they are dealing with. Again, some guidance from an organisation like Which? might be welcome.

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Anon E Mouse

Not to rain on your hate-on-DRM parade, but… I work for iTunes Store Customer Support. We transfer account ownership (and all the content access rights that are attached to that account) in the event that the original account-holder passes away. As with most property transfers in this situation, we require proof that the account-holder is deceased and that the person making the request has the legal right to the deceased’s property.

While it’s true that modern DRM law means you don’t “own” the digital content you pay for, the same is true of the media contained on physical media – you own the physical media, and limited usage rights to the content therein. iTunes Store accounts work pretty much the same way; you don’t own full rights to the songs you buy, but you own the account itself.

Disclaimer: I am not a lawyer; I’m just relating the procedures us tier one phone advisors follow for requests to transfer an account after the original owner passes away. I have never heard of such a request being rejected (assuming the proper records could be provided), and as far as I know we don’t even have procedural documents in place to reject such a request other than reiterating “you need to send us X and Y documents, and you haven’t done that yet; please do that.”

Thanks Anon E Mouse, that’s a useful perspective from someone in a position to experience this situation first hand. It’s good to know that in these instances it’s possible to transfer digital rights upon request, though I think what is lacking is a clearly stated policy that lets Apple customers know this is possible now and will be for the future.

Without such terms and conditions in place, consumers still risk losing their rights to passing on digital downloads later down the line. It sounds like Apple is doing the right thing on a case-by-case basis at the moment, according to you, so all the more reason to keep everyone happy and cement these rights in their terms and conditions

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Spooky Steve Jobs

BOO!

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Todd Ariss

I’ve been considering another option of having all my digital DRM based purchases made by my company. My company, as a legal entity, would be the owner of this material and when I die the corporate entity continues to exist even though it is passed on to my heirs.

I have yet to hear any arguments that this would not work legally. After all… companies are people too ;)

Todd

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Mervyn

I suspect that you might find that the company would be breaching its licence to usage by allowing you to listen to the music. At least I know that as a church treasurer, we must have a specific licence for making music available for our members, whether in services or youth clubs etc.

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Martin Houston

It may well be that the iTunes store policy at present is to allow accounts to be transferred that policy could change and if we are left with no legal backing a lot of a persons supposed ‘assets’ if they are DRM protected or otherwise only exist on-line could die with them. This is an outrage against natural justice. We need a clear legal right of ownership that can be passed form person to person. The idea of using a company proposed by Todd is good but not for everyone. Companies cost money to maintain so if the company was not actually trading too it would not be cost effective. Also there is the problem that the Inland Revenue may consider the purchases as a tax dodge!

The whole IP landscape is littered with law that is to the benefit of the media corporations who have spent years and millions lobbying for what they want, even it it is to the great disadvantage of human beings. The latest such threat is ACTA and the hundreds of thousands of people out on the streets of Europe in the last few weeks protesting about it maybe will send a message to these corporations that they cannot get away with doing this any more – just search Youtube for ACTA and you will find plenty of coverage of the marches on 11th Feb. Why did you not see them on the news? Because the media corporations do not want you to know that the public has finally said ‘ENOUGH’ to all these petty restrictions and treating ordinary people like they are criminals.

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richard

Though I can understand the idea of protecting the artist’s rights by copyright – I really can’t see the legality of the objection to format change. I have 100s of VHS tapes which I have copied to DVD when the companies decided unilaterally to discontinue VHS machines – I bought the tapes – I can still hear the music. Equally I have CDs that are now more convenient as DVD. So frankly I will simply ignore this travesty and pass on my collection to whom I choose.together with the originals. I haven’t actually downloaded any digital music but have downloaded update versions of software – I paid for it – it is mine.

Isn’t there a e-petition we can sign? Mind you if the NHS is anything to go by – it would be ignored by our inept government. anyway.

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Adam A

Quote: “…we think it’s time for the main digital retailers to clear up our rights…”
What? What a great symptomatic statement. Symptomatic of the entire way the intellectual property (IP) mess is being handled.
And we, the people, bear a huge responsibility for it. Precisely by letting the creators of IP determine the rights of the people to use it. Rights are not granted for free. Rights are demanded. It is time to demand our right to use stuff that we bought and payed for any d* way we please.

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richard

Sorry I disagree – The artist is completely right to demand you do not buy one copy of their work – copy it – and sell your copies for profit – depriving them of a living.. This is why we have copyright laws in the first place.

My only objection is with format change – I buy a copy of a works and I want to be able to use it on all devices – I only use them one at a time and don’t sell the copies – So I should be able to do so with format change,

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Economicsgeek

I have worked in software for over 30 years. The fundamental principle involved here is that you get what you pay for. If you want to rent a popstar and agree an exclusive recording that you can resell, bequeath to your children etc, then you can do so – at a price. It is likely to be a very high price. When you buy a CD (or a download) for a few pounds you get exactly whatever the contract allows for that price – and if that is a personal and non-tranfserable “right to use” then that’s what it is, and its what you paid for. Why demand something you haven’t bought???

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JamesAard1

The music and movies I purchase are for the use of myself AND my family, therefore they WILL be naturally left for them to enjoy. Is this legislation actually stating that my family can’t listen and watch what I buy….whether I’m sitting next to them or out at work? This would be nonsense.
A further question over the subject would be – what if my hard drive were to be destroyed in a fire/flood or other such terminal disaster, would the records of my purchases still be in existence so that I may be able to RE-download them? One payment obviously buys the material, so I always have the right to it…..what does the law say?

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Peter Such

Hi. Absolutely correct. I have made preparation in my will to cover managing my own web site etc as part of my executorship but had not expected a legally appointed executor could not effectively act on digital data possession in the same way as physical items. After all, I had no problems acting as executor to my father’s estate when dealing with electronic banking arrangements through normal process. These issues must be dealt with urgently.

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Mike Allisstone

It’s a bigger problem than just downloads. Executors are going to have to decide what to do with the entire contents of the departed’s hard drive which, in many ways, is the equivalent of a very large filing cabinet and which can include some vital information. Important documents in filing cabinets can be fairly readily identified and passed on. Are executors going to have to plough through everything on the hard drive to ensure that nothing is unwittingly discarded? The sooner some official guidance is provided on this the better.

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Hectare

I want to ask an adjacent but I think relevant question…what will happen to all the digital media files we have legally bought if one or more of these behemoths (Amazon/Apple/google etc) decide to stop supporting those files,change the formats or some energy crisis shuts down their server farms …we seem to have all our virtual eggs in one (or maybe two) baskets. It is a similar scenario tio the previous succession of quickly redundant formats, Beta, VHS, laserdiscs etc. All these now rely on a specific type of hardware to enable playback. Just because your films or favourite track is now just a file, doesn’t mean you will be able to rely on it always being available or ‘decodable’ in the future (is that a word?)

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Sidburt

I think that my purchase of books on Kindle should pass some property rights to me. They are currently not transferable while I live which I find hard to accept. Maybe we should try to obtain the right to pass on to, at least one other person, the ownership of a Kindle Book. Some of the books are not dramatically cheaper than those available from Amazon as real books. No one would argue that I should not be able to pass on a real book.

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Robert Park

When I passover which statistically will not be far away, I doubt if I will be concerned about the traces left behind; if necessary, I will leave it to others to sweep-up the mess (selfish but pragmatic).

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crazytrucker

When I passover which statistically will not be far away, I doubt if I will be concerned about the traces left behind; if necessary, I will leave it to others to sweep-up the mess (selfish but pragmatic).

I kind of like your style there sir.
My dilemma is this I have yet to update my will, yes I know I should, £100 to update my will or ten bottles of Vodka! (Joke) As it stands now at this moment in time my sister who I have had nothing to do with for 11 years nor am I likely to, gets the lot, either her or her vile offspring. My children (2) were estranged from me for years though they are once again my children and I’m their dad should inherit my junk but you can bet your life the vile sister and her equally vile offspring will be picking over the remains before my body is even cooled down, she, the sister would fight tooth and claw if there was a halfpenny in it for her. Which incidentally is all she will get!
Half of me, and my kids, who don’t want anything except my daughter who wants my Punk Rock/Heavy Metal stuff, she hated it as a kid, and my son who wants my Americana stuff, Civil War, Baseball and NFL stuff, say leave her the entire mess, because I’ve never been much for being organised.
I would love to see the three of them rummaging through ‘my stuff’ for anything of value, like Vultures picking over the corpse. The problem being all my books, and collections, Superbowl, Tour de France, all in mint condition and worth quite a bit but would mean absolutely zilch to those three greedy swine would be burned or binned as she did to all my/our mother’s belongings, this was the woman who was too busy to go to our father’s funeral, or her children. At the time I was in the middle of a breakdown so had no idea what was going on, and anything of value I had had already been Cash Converted, for CC read robbers! If my books, and there are probably 2-3 thousand, were all going to be burned I couldn’t bear that, but I would so love to leave a complete nightmare behind me for her to sort out, including funeral arrangements, though my ashes I doubt will be scattered at sea, just simply chucked in the nearest ditch.
Conclusion:
Make a concrete, bombproof, rock solid will that would be uncontestable by the vile sister and her equally vile offspring. I should and would have contested our mother’s will if I’d had all my faculties about me, everybody who saw that docuement knew it was a stitch up.
As for my Kindle and downloads they will go to a good home and I certainly won’t tell or inform anybody that I’ve done it, mind you with this alleged Government I wouldn’t be surprised that they have some ‘Think-Tank’ somewhere made up of college graduates with degrees in Geography coming up with a devious plan to make money from our handed down downloads and the like, just like they’ve suggested to do away with our bus passes!
Mr Angry of Suffolk, formerly of Tunbridge Wells, I’ve moved!

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robert smith

I’m nearly 70 and expect to live at least 10 to 15 more years. My will clearly leaves goods and chattels to the young members of the family as long as I out live my spouse. With regard to Iphones my taste in music is 40′s big band Jazz, easy listening 50′s up to about 1960 with early rock thrown in.
Our Charlotte and Michael, who are in their mid twentys simple do not understand my music, and look on me as an old loveable fuddy duddy. The day after my will is read I am sure that most of what I have will go to the Sally Army or the bin.
The same goes for my collection of books and Kindle. Unless one is really interested in volcanology what chance do my interests have in being past down. More likely to be past over.
Do you watch the facial expressions of the kids on Antiques Roadshow when they realise the worth of the piece of rubbish granny has just had valued?
As for the legal point of down loaded books and music, the point is very clear. You are paying to read or listen not to own. Simple ain’t it.

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George Wensley

I totally disagree that my family cannot listen, read or watch digital media that I have purchased before I am no longer alive, after all they do this now regardless of me being physically with them.
This is a rule/law that if true is old fashioned and not in line with today’s life styles.

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robert smith

The problem is George is that you have not bought the item .You, by law, have merely rented it for your lifetime and when you become a memory the rights go back to the rightful owner. Exactly the same as a rented house or car or wedding suit or anything else you RENT.

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Matt Reid

I do not have a Kindle but have over the years bought (or so I thought) music. When I decide to purchase I hit the buy button not a rent sign/button in sight.
I have not read the terms and conditions as really not too worried what happens to the music when I am no longer here to enjoy it.

I think that’s a brilliant point Matt, and thanks for bringing this up – I often download music directly from my iPhone now, and how do I do that? By pressing the green button in iTunes marked “buy” – not “buy license”, not “rent”, but “BUY”!

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Steve K

Your not buying anything more than the rights for you. If you think different then you have missed the main point, but to get up to speed go try to sell your files. You can’t.

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robert smith

I think Matt is getting to the point. When he is no longer here to enjoy his music he doesn’t really care what happens to it. Surely it is only those who are bloated with their own self importance who believe they can influence others from the grave.

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crazytrucker

With my books it’s nothing to do with my own ‘bloated self importance’, it’s just that I would like to see most of them find good homes to be enjoyed as I have enjoyed them, ok so there are some trashy novels that I seem to have inherited, and there are a couple on Thatcher that I had to read for my degree, did my degree in my 40′s, but the majority of those I have bought mean something to me, perhaps that is self importance, but why shouldn’t someone else profit from them either selling or enjoying, but not burning, dumped or pulped!
I know we are into downloads but to me it’s the same, my mother would have loved some of the stuff I’ve downloaded though I loathed it as a kid, similarly my children, heritage has to be passed on even though it’s not all good.
Here’s another connudrum, Audible books, from Amazon can’t be downloaded to CD’s/DVD’s, they just remain on my hard drive, who has the rights to those? I have about 60. Do I just pass on my account details or not? I will but that is besides the point.

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lost navigator

I am not sure where the borderline exists between on line purchased items, as a paid for download from Amazon which presumably i am licensed to use, or passing on to my children bought and paid for CDs
Am I really only supposed to use the download at home or can I play it my car to my family.
If not the latter then the situation become ridiculous and is surely unenforceablr.

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Sue B

I don’t know if this is to do with DRM but I subscribe to Audible for MP3 format books. This is a good source of such material but my concern is that you need to dowload software onto a player to be able to play the books. When I signed up I was asured that if my membership lapsed I would be able to access my books but what happens if the company folds or changes hands and this policy changes? I have the books on my computer but would be unable to play them without the software download from the Audible website.

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Anton Koekemoer

Haha, Great Post! Thanks for a great reading experience.

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nala

WOW!

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Andy

All this makes a good case for naming your children with the same name as yourself like the Americans have a propensity for doing with Joe Bloggs III for instance. If your credit card details and passport name as the son of the deceased match your father, then who’s to know you now have access to his account (presuming he left you the password). Though for women who get married and change their surname, there clearly already has to be a policy of allowing people with a different name to take over the rights of their pre-married account details…

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m.

If we were told that after we had finished reading a [traditional] book, we could either keep it on our shelves for our use only, or burn it if we had finished with it. Would we accept it?

No second hand book shops, no book donations to disadvantaged schools & countries, no lending a novel to a friend, no sharing of school textbooks and so it goes on.

This is yet another attempt by manufacturers to try and retain ownership of a product after we have purchased it.

Once I buy media. Whether a record, cassette, CD, DVD , VHS, Download or whatever. I have purchased that for my personal use, that use includes passing my copy onto whosoever I choose, and changing it to any format I like. The copy is mine, as long as I don’t copy and distribute it, or use it for profit without paying copyright dues, I do what I like with my copy, it is my property.

Having had to put up with myriads of laws designed to curtail my freedoms & rights and give quangos, co-operations and any Johnny come lately with a ministers ear, rights over me and my property which are breathtaking in their arrogance and complete disregard of the consumer. [see threads on OFT etc...], I have only one answer to this bit of cooperate bullying.
I am challenging this as it is not a real law, it is a protectionist measure designed to allow the companies to sell us the same product over and over, because they [not we] change format. In fact close scrutiny shows the gross curtailment of consumer rights makes it more illegal than legal. The whole purchasing a license to use the product is a complete legal confidence trick, as some commenter’s have pointed out.

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Crazytrucker

I like your attitude there, however, I am a cynical old git and you can bet your life if there is some company, (Sony appear to be the worst) or Government that can see a few bucks you can bet your life they’ll be onto it.
The only thing left for this LibDem assisted Tory shower can do to me is tax the air I breathe as I’m in the gutter there is nothing more they can do to me, well perhaps Sony will sue me because I infringed copyright about 10 years ago, allegedly! Blood out of a stone cannot be got!

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Steve K

If you owned it, you could sell it, you can’t, your basically buying the rights for yourself. When yourself takes a dirt bath so does everything you paid for. Pretty jacked.

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lombear

Well there are services offering to pass on the passwords to accounts to executors etc for a fee – used to be called icroak (rather wonderfully) now renamed to something more austere – google digital legacy services.

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