Willis or No Willis: Passing on Your Downloads When You Pass

Sept. 4, 2012 — -- There was a hot rumor going around that "Die Hard" star Bruce Willis was taking legal action against Apple because he couldn't leave his digital music collection to his daughters. Willis, went the rumor, found out that he couldn't pass on his many iTunes songs, at least not legally.

The story has since been confirmed by Willis' wife as not true -- that is, the part about Willis taking legal action against Apple -- but other parts of it, including the bits about your inability to pass on your media legally, has some truth.

Willis, whether on purpose or not, has brought up some interesting questions about just what happens to your downloads when you die.

Digital 'Ownership' Basics

Unlike physical media (CDs, DVDs, vinyl records), digital media (downloaded songs, movies, books, etc.) are not physical objects, just bits of information on the hard drive of your computer, smartphone, iPod, or tablet.

That might be obvious, but Bill Rosenblatt, an expert on digital media and copyright, explained just what that means in terms of ownership.

"When you buy a song or movie you are downloading a pile of bits to your hard drive. You are actually not buying it in the sense of buying a DVD or CD. What you are doing is taking out a license to use those bits," Rosenblatt said.

That content and license is for personal use only. And that's exactly what user agreements from Apple, Amazon, Google, and others state.

"Don't reveal your account information to anyone else. You are solely responsible for maintain the confidently and security of your Account," the iTunes Terms and Conditions say. Similarly Amazon's MP3 Store conditions read: "Upon payment for Music Content, we grant you a non-exclusive, non-transferable right to use the Music Content only for your personal, non-commercial, entertainment use, subject to the Agreement." It goes on to say, "You do not acquire any ownership rights in the Software or Digital Content as a result of downloading Software or Digital Content."

That's pretty clear: you don't actually "own" your music, at least not in the sense that you owned CDs.

"Physical purchases of music are governed by a legal doctrine called the First Sale doctrine, which allows us to give or sell our CDs to anyone we want -- including passing the assets through our estates to our kids," Eric Goldman, a law professor at Santa Clara Law School, told ABC News. "The First Sale doctrine does not apply to electronic downloads; and the vendors' contracts often further restrict buyers' abilities to share or give the music files to anyone else -- even our kids."

With that, it is easy to see the problem with death: when you pass away, you cannot legally pass your online music, books, video collections or apps on to others. Companies like Amazon, Apple, Barnes & Noble, and Google don't have specific policies for death, though Amazon in the past has said you can give another user access to your account. A site called Deceased Account keeps track of the death policies of tech companies.

Work-Arounds, Digital Asset Preparation

Goldman and Rosenblatt agreed that the law is not likely to change, whether Bruce Willis or any high-powered celebrity starts to fight it.

"Ideally we would develop a First Sale doctrine for electronically downloaded files equal to the First Sale doctrine in the offline world, but the chance of that happening by statute is zero," Goldman said. "iTunes could try to negotiate more generous rights for its customers from the upstream music creators, but the chance of that happening is also zero."

But there are some work-arounds, including establishing a trust. "One way you could pass that [your music collection] along is by setting your iTunes account in a trust, in a legal entity to pass the account from one person to another," Evan Carroll, co-author of "Your Digital Afterlife," told ABC News.

In fact, David Goldman, an estate attorney, has created a piece of software called DAPTrust that creates a digital vault for digital assets to help people and estate lawyers prepare.

"We came up with an integrated piece of software, which was a one way vault. It is a very secure, encrypted system that allows people to create and assign survivorship provisions to your digital assets," David Goldman told ABC News. "Those might include something as simple as your Gmail account."

The software is intended to be used by estate attorneys to help clients. DAPTrust is in the final stages of beta testing now and should be available this month.

However, the process of setting up a digital trust can be complicated and requires an attorney's involvement, which is why others might just consider passing on their log-in credentials, including password and payment information, for various digital services to their next-of-kin before they pass. Even if one's heir didn't have the ability to then save that music or media to their account, they'd still have the ability to access it.

Similarly, in the case of music, there's also the possibility of burning the songs to a CD. This wasn't recommended by the experts, however; it isn't entirely legal.

With all that, all the experts ABC News spoke with were actually happy when the Willis rumor mill kicked into high gear on Monday, if only for the attention it brought to the matter.

"He would be pursuing a very noble battle," Carroll said. "Until there is enough public awareness of the problem or consumer pressure, we will have to maintain the current status."