The digital dead hand
It’s an estate planning / New York bar exam joke — it has to do with something called the Rule Against Perpetuities. Yes, of course, we know that hands are made of digits; but how hard do we have to work to form the perfectly flowing pun when we have a real point to make?
I have been troubled for a while by the proposition that there is no cognizable expectation by a decedent of privacy of email or other online files, protected by password — by analogy to leaving one’s “personal papers” behind for heirs or executors.
Alex Wexelbalt, the very smart guy who poses as a know-nothing about copyright law at Corante / Copyfight (and often does so convincingly), actually picks up a nice point here, even suggesting that it is okay — contrary to his usual line — to care about your own IP and maybe want to protect it. Or maybe he only thinks that if you’re dead:
Neil Gaiman’s blog entry today is an earnest attempt to get writers (and by extension any of us with intellectual property we care about) to put instructions into our wills relating to that IP.
The prompt for this is apparently the fact that the recently deceased writer John M Ford failed to leave such a will and as a result the status of his literary works is uncertain. Since the multiple changes to copyright law in the last century extended IP rights well past the death of the original author, Gaiman’s advice is very sound. If you care about who gets to reinterpret, republish (or keep from publication!) or otherwise handle your creative output after you’re not around to do it, leave legally binding instructions, dammit. This especially includes situations where people would like to release their works after they’re no longer able to personally profit from them. By default if you don’t specify, then nobody gets to do anything.
I’m not sure about that proposition — “nobody gets to do anything” — but I do endorse the idea of thinking about the disposition of copyright and for that matter digital private matter after death.
As Mark Rasch wrote in a 2005 article on Law.com (registration required):
In addition to ownership of physical documents and of the IP contained in them, it appears that Yahoo is legitimately concerned with protecting Ellsworth’s privacy rights. . . . It is not clear the extent to which personal privacy rights dissipate after death, but there is no reason to believe that a promise to protect privacy (like those contained in the terms of service of the online providers) should terminate on death. . . .Typically, the court would look to the intent of the deceased. The problem here is that the decedent probably did nothing to make his intentions known.
In theory, a broad durable power of attorney properly executed and delivered to third parties could allow someone to have access to electronic assets, but this does not deal with the problem at Yahoo where an account simply “disappears” upon death or inactivity. There is no requirement that these e-mail providers give the attorney-in-fact that password, or otherwise keep the account alive. Thus, as a practical matter, access to the IP dies with the owner, absent a court order stating otherwise.
[The solution is that] when you create a free e-mail account, whether with an Internet service provider or with a free service, you should also create an “Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf. And who knows, maybe that Great American Novel will be published after all — albeit posthumously.
Well, I can’t promise anything that interesting, much less literary, in my Yahoo! account. But we leave behind so much electronic detritus, much of it out of context and even more of it ill thought out or perhaps just plain personal. Why is the presumption in favor of giving the heirs access if they go to the trouble to seek it? I would at least shift the presumption in favor of privacy, even of the dead, based on their pre-death expectation of privacy. How do I know it was expected? From the fact that if heirs had the password to an account, they wouldn’t need a court to order it opened; and if they don’t have it, why, there must be a good reason the late Ron Coleman didn’t give it to them.
Certainly if, as Rasch suggests, I make an Internet Living Will and give the instructions to someone other than those heirs, that would tend even more strongly to suggest I don’t want them poking around in my virtual sock drawer — I could have just given out my password. Why didn’t I?
Besides the fact that I probably forgot it myself.