Digital Estates, Digital Heirs

In October of 2011, a friend of mine, James*, died after a nearly two year battle with cancer.  He had just turned 40 the previous May, which put everything into perspective for me.  Not long after I turned 40, I came down with the flu for the first time in my life.  To know James was to like him.  He had an infectious personality and an equally infectious grin.  Despite his cancer battles, he never relinquished hope for his future.  A few weeks before he passed away, he posted a message to Facebook simply stating that he’d just returned from another stay in the hospital and wasn’t feeling too good.  That was the last I heard from him.  I only learned of his death after I saw a message a friend of his posted to his Facebook page expressing remorse.

If you have a Facebook account, you know that you get messages about friends’ upcoming birthdays.  Whether they’re real friends – as in people you could call at 3:00 in the morning when you’re holding a knife over your wrists – is another matter.  But, I was surprised – almost angered – this past May when I received an email from Facebook advising me of James’ upcoming birthday.  Hadn’t someone thought to take down his Facebook page?  That no one had done so is what startled me; it also upset me.  I know it’s hard to let go of the ones we love, or even just like.  We have a tough time believing that they’re gone – even if they were very old and / or sick.  I had that response after my paternal grandmother died in 2001 at age 97.  I certainly felt the same when James finally succumbed to cancer; it seemed he hadn’t been getting any better.  But, as I sat in front of my computer and looked at that stupid Facebook email – ‘You have 1 friend with a birthday this week’ – I wondered who would take command of James’ property.  Did he leave a will?  Was there anything to leave?  And, to whom?  But, I’d always pondered what becomes of people’s digital property upon their demise.  Or, does digital property even exist?

That’s a question our society will have to face and ultimately answer as we grow more and more technologically advanced and interconnected.  It’s a quandary that beset an Oregon woman named Karen Williams when her son, Loren, died in a motorcycle accident at age 22 in 2005.  Williams found his Facebook password and emailed the company, asking administrators to maintain Loren’s account so she could look through his posts and comments by his friends.  But within two hours, she said, Facebook changed the password, thus blocking her efforts.

“I wanted full and unobstructed access, and they balked at that,” said Williams.  “It was heartbreaking.  I was a parent grasping at straws to get anything I could get.”

Under Facebook’s current policy, it puts a deceased person’s account in a “memorialized state.”  Certain information is removed, and privacy is restricted to friends only.  The profile and wall are left up so friends and relatives can make posts in remembrance.  Facebook will provide the estate of the deceased with a download of the account data “if prior consent is obtained from or decreed by the deceased or mandated by law.”  If a close relative asks that a profile be removed, Facebook will honor that request, too.

Keep in mind that Facebook was founded by a group of horny college boys who wanted a means of tracking the names and phone number of “hot chicks,” so it’s not exactly a repository of “Greatest Generation” stories.  But, there’s a principal inherent in that issue: digital property.  It’s a relatively new term.  Intellectual property, which is similar, doesn’t have that much more seniority.  And, as usual, the law struggles to keep up with the pace of technology.

When the Writers Guild of America (both West and East branches) went on strike in 2007, for example, one key demand focused on monetary compensation for “new media;” that is, content written for and / or distributed through emerging technologies, such as the Internet.  The movie and television studios weren’t prepared to address that particular matter and – as they always do when writers go on strike in the professional entertainment business – they had the audacity to be shocked and declare the writers’ claims unjustified.  But, apparently studio executives hadn’t learned any lessons from the 1988 WGA strike, which cost the entertainment industry millions in lost revenue in the state of California alone.

In a sense, though, the WGA battled for intellectual property rights.  But, the 2007 – 2008 strike was geared more towards that ubiquitous technology.  If a television or movie studio makes a profit from selling programs and films to I-pad users, why shouldn’t the writers who create that form of entertainment make money as well?

If I’m still alive when my parents die, their house will become mine.  It’s stipulated clearly in their last will and testament.  But, in the state of Texas – as in all states – physical property automatically goes to a surviving spouse, or a surviving child.  If my mother is still alive when my father dies, his collection of model cars would become her property.  Conversely, if my mother dies first, her jewelry would go to my father.  But, would my father’s email account go to my mother along with those model cars, should he die first?  What about all his genealogical research material?  He’s printed reams of data related to that research and carefully organized it into binders.  But, would my mother also have access to his Ancestral Quest account?  When she dies – a year later, or ten years later – those model cars consequently would become mine, since I’m their only heir.  But, would my father’s email and Ancestral Quest accounts also become mine after a year or ten years?

What if I die first?  I don’t have a formal will, but I composed a document stating that all my property, such as my books and National Geographic magazines and my own vast collection of model cars, go to my parents.  But, I included my personal computer and all of its data in that homemade will.  Would that hold up in a court of law?  If I die first and haven’t published my novel yet, can my parents submit it to a publisher and earn revenue from its sales?  I printed up a copy of it last year, simply so my parents could read it.  But, that was before I obtained the official copyright for it and made some major editing changes.  Would the digital version on this computer still be tangible?  In the past, writers have died before finishing their last work.  But, their heirs publish it anyway; sometimes with the help of a friend of that writer.

There are several entertainment figures who seem to make more money in death than they did while alive.  Elvis Presley and Michael Jackson are among the most prominent.  Usually all or most of those proceeds go to their respective heirs.  The companies that distribute the material, such as songs and movies, also make a profit.

The crux of the argument is whether or not intellectual and digital property can be placed in the same category as physical property.  Many individuals have already addressed the matter.  Microsoft has developed an entire project dedicated to the subject.  Ultimately, I feel this will find its way to the U.S. Supreme Court.

I didn’t wish James a ‘Happy Birthday’ this past May – not on Facebook.  I wished him a ‘Happy Birthday’ in my private cogitations.  I don’t need established law to help me with that.  Neither Facebook, the state of Texas, nor the U.S. Supreme Court can bring back my friend.

*Name changed.

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