Bamboozled September 28, 2017: Who gets your digital stuff when you die?

When you die, your spouse, children and other heirs get your stuff.

You can leave them your home, your car, your family heirlooms, your troll statue. You can leave them your record collection and your beloved paper books.

But unless you take action, your digital libraries — your e-books and music downloads — could be lost to the ether.

In the digital world, consumers spend thousands of dollars on e-everything. Just think of all the money you’ve spent on your iTunes library and Kindle or Nook book collections.

But in many cases, you don’t actually own the book or song you’ve downloaded, even if you clicked a “buy now” button to access them.

Instead, you’ve purchased the rights to read or listen to the items.

It’s in the fine print. Agreements you check off when you buy from retailers like Amazon’s Kindle store and Apple’s iTunes store have language saying that unless it’s specifically noted, you don’t have the right to distribute or share the content you’re “buying.”

That makes trying to pass on these items at your death confusing at best.

What’s more, the license for the item you download today could be different from what you downloaded last week or last year, and it could be different from the license for the item you download tomorrow, said Jonathan Bick, an adjunct professor of internet law at Rutgers Law School.

“There is no one agreement I can read to determine whether or not you have the right to pass along your materials,” Bick said.

Still, most consumers consider digital items they’ve purchased to be their property.

Not exactly.

Imagine a bookshelf in your home, filled with lovingly selected tomes that you plan to read someday. Then imagine a bookseller telling you it’s taking the items back.

That would never happen with paper books, but it can — and has — with electronic purchases.

In 2009, for example, Amazon pulled George Orwell’s “1984” and “Animal Farm” from its customers’ Kindle libraries because of a copyright dispute.

Then consider that digital services can go out of business.

“Media companies — even large, reputable ones — sometimes shut down or otherwise deprived consumers access to paid digital media,” said a recent paper on the topic by professors from Case Western Reserve University and UC Berkeley’s law schools.

“Google, Major League Baseball, MSN Music, Sony, Virgin Digital, Walmart, and Yahoo have all shuttered digital media services, or at least threatened to do so,” it said.

The study found 83 percent of consumers surveyed believed they owned their digital content in the same way they own material items

But that’s not correct, the study’s authors said.

“The Terms of Use and End User License Agreements associated with digital media goods typically restrict not only bequeathing those goods by will, but all manner of transfers,” they said.

And we’re guessing you haven’t read most of the Terms of Service you’ve agreed to. Indeed, the study’s authors said iTunes’ fine print is more than 19,000 words or 56 pages long — longer than Shakespeare’s MacBeth.

So what are we to do?

Some estate planning attorneys and financial advisors have suggested establishing a trust that could purchase the digital items, and then access to the trust’s property could be passed on through the generations.

But our experts said that’s probably not the way to go.

“Setting up a trust which makes the purchase of digital assets is creative, but I am not sure it would work,” said Yale Hauptman, an estate planning attorney with Hauptman and Hauptman in Livingston.

And there’s a cost. Hauptman said the expense of setting up a trust could be $1,000 or more.

Shirley Whitenack, an estate planning attorney with Schenck, Price, Smith & King in Florham Park, said before thinking about a trust, there would need to be a determination of whether the digital asset is really a personal license to use the asset or whether it’s actually owned and can be passed down.

Also, you never know if the Terms of Service you signed — or may sign in the future — specify that the license offered can only be purchased by a human, rather than by an entity like a trust.

Bick said a trust wouldn’t work because if the Terms of Service are agreed to by a trust, “then only the trust can read it [or listen to it] and the trust is nobody.”

The Terms of Service or licensing agreement doesn’t envision in perpetuity that anyone whose last name is “X” can have access to the material, he said.

So the easiest answer in this world of morphing Terms of Service agreements and copyright questions might be to make the digital assets real.

Whitenack said you can transform the digital assets into physical media so it becomes “tangible personal property instead of intangible personal property.”

With all the uncertainty, Whitenack and Hauptman said the answer might be to simply pass on your passwords and the devices on which your digital stuff resides.

“If I buy an e-book on Amazon and download it to my Kindle, I can’t transfer it to your Kindle but I can give you my Kindle so you can read the book,” Hauptman said. “So if I leave you my Kindle or my iPod in my last will so you can enjoy the songs and books that I purchased, have I violated any contractual obligation to Amazon or Apple? Probably not.”

Bick, the internet law professor, said if your digital assets are on a device or a thumb drive and you transfer the right to use the machine to someone else, it’s just like passing on your record collection.

So maybe it’s time for you, dear readers, to make a list of all your logins and passwords for your digital assets, along with a list of all the devices that can access them, and make it a clear part of your will. We’re not just talking books or music, but stuff like online photo libraries, email and social media accounts.

And remember, earlier this month, our governor signed into law the Uniform Fiduciary Access to Digital Assets Act.

“It authorizes fiduciaries, such as agents under a power of attorney, guardians, trustees or executors of estates to manage digital assets in much the same way they have had the authority to manage traditional tangible assets,” Whitenack said.

At a minimum, she said, consider whether to include access to digital assets in your estate planning documents and provide passwords to your loved ones, or at least have that list available so the passwords can be passed on.

But because we’re supposed to change our passwords frequently, you’re going to have to be on the ball to make sure your loved ones have access to your latest ones.

Let us know how you plan to pass on your digital stuff.

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