Lilian Edwards

Professor of Internet LawUniversity of Sheffield

Lilian.edwards@sheffield.ac.uk

Who owns digital assets when you die – platform or creator?

If creator, how are heirs to access, preserve, and transfer or delete on death?

What if conflicts arise between deceased, potential heirs, and platform?

Is it all about economic value, or also about “sentimental” or “persona” interests?

Follows on from previous work on both “virtual property” in MMORPGS, and work on regulation of social networking sites/”walled gardens”

Suggest that ad hoc approach, DA specific, country-specific, and site-specific regulation, not best way forward.

Facebook profiles – often “memorialised”

Blog site posts – literary/cultural heritage?

Photos eg Flickr – value plus sentimental appeal

Ebay Ids and reputations Emails eg Gmail – all of

above plus access to deceased’s network

Last.fm – user’s listening preference profile (cf Amazon, etc)

MMORPGS eg WoW – account, virtual currency, assets and avatar

1. no1 b4 me. srsly. 2. dnt wrshp pix/idols 3. no omgs 4. no wrk on w/end (sat 4 now; sun l8r) 5. pos ok - ur m&d r cool 6. dnt kill ppl 7. :-X only w/ m8 8. dnt steal 9. dnt lie re: bf 10. dnt ogle ur bf's m8. or ox. or dnkey. myob.

Nearly all “digital assets” now held on web services , not standalone on user machine – issues of control and co-operation with second parties(Desai, 2008).

Nearly all such web services are “walled gardens” ie non-interoperable, non open code, for good commercial reasons

Some DA s clearly have IP protection – but some vague (eg eBay reputation) and contract T & C may trump IP rights of creator anyway.

Different types of values to be protected – creator’s (“persona” /privacy/reputational rights after death (?)); heirs (economic and sentimental interests); societal (cultural/common heritage – cf John Lennon’s letters, Burns’s poems, my blog?)

Probate law is heavily local while DA s likely to be hosted almost anywhere – need for a lex web situs conflicts rule? (cf lex situs/lex ultimae domicilii). Or better, harmonised rules?

SNSs. Facebook most sophisticated – specifies proof of death info needed to memorialise site, restricts to FO, removes sensitive info; a/c can be deleted but not modified or login passed over. MySpace, deletion or preservation, no transfer of login. Bebo allows next of kin to make profile private & amend slightly.

Email. Gmail allow access on proof of death and power of attorney (cf probate, confirmation etc). Yahoo! US as part of privacy policy hold a/c is terminated on proof of death, all emails deleted, login not transferable. (The US marine case, Hotmail used to expire a/c after 30 days disuse; not clear if still the case. Forbids transfer of password.

Auction sites. eBay: hard to find info on either site or via enquiry (Death- the Web Difference). Yet has most economic value attached to a/c, esp. unfinished transactions and rep of seller. Disclosure of passw “not recommended”.

Last.fm : Accounts never disabled after death – seen as community effort to produce best service possible. If no password, would have to be “very convincing towards the support people”.

Flickr; as Yahoo.co.uk . Almost no info. “You acknowledge that Yahoo! reserves the right to log off accounts that are inactive for an extended period of time. “ Reportedly sites can be closed and occasionally transferred on proof of death.

MMORPGS - WoW: “All rights and title in and to the Service .. Are owned by Blizzard” – “user accounts”, avatars, swords etc, (paras 4,7,11) and non-saleable (para 11) Para 13 – termination – no mention death – no refunds!

Very hard to acquire info – SNSs seem to consider death issue more than other sites.

Only consistent norm is total control by platform. Rights of family etc all at their discretion and grounds for action vague & ad hoc.

No consistency. Nearest to a norm is deletion on proof of death. For SNSs memorialisation seems common practice.

Almost no opportunity for heirs to take on and alter/run site.

No opportunity at all for creators themselves to indicate preferred option after death eg in privacy settings? Transfer of passw nearly always banned.

WoW epitomises the “we own it all” paradigm.

Are DA s assets that do/should survive death? Cf defamation/DP rights/ (some) moral or publicity rights – don’t. Economic rights usually do – eg copyrights.

The intermediary’s control. Provide initial “capital” – right to regulate what they can do on own site? But contract challenged in other areas eg privacy. Practical control – court orders? What if site goes bust?

Privacy of the dead vs. wishes of the living? Yahoo! email marine case seems unfair, but what if illicit affair/closet gay? Dead have no reputation.

Should deceased or heirs control future of DA s? Cf succession disputes over burial/cremation/interment place (executor rules?); organ donation (family rules?) But user is creator of DA – a sort of moral right?

Less advanced “digital will” – envelope of passwords or clause in will.

A trust? Allowing deceased’s wishes to bind estate re future deletion/preservation/transfer?

But many die intestate especially the young. A default policy/code of practice for SNSs etc?

Clarity & planning Should it be deletion/preservation/transfer of login? Can user select a default? Can family oppose? WoW – can site argue business model forbids?

The future – life logging and aging digital natives.

Disintermediation – Stross’s “your life on a diamond”? A virtual transhumanist you?