Delaware Passes Law Granting Residents The Right To Pass On Digital Goods To Their Heirs

from the because-of-course-people-should-have-this-right dept

As rights holders have made clear time and time again, your digital purchases are never truly yours. If someone decides to shut down a service, it's likely your purchases will vanish into the ether along with the service itself. If you want to resell your mp3s or ebooks, you're facing any number of unsettled legal questions and various industries pushing the assertion that your money was exchanged for a limited use license, rather than the acquisition of a product.

But there may be some changes forthcoming. As The Digital Reader reports (via Ars Technica), Delaware has just passed a law that allows its residents to pass their digital purchases licenses on to their heirs.

Last week Governor Jack Markell signed House Bill (HB) 345, “Fiduciary Access to Digital Assets and Digital Accounts Act”, giving heirs and the executors to estates the same rights over digital content which they would have over physical property.

In a case of life imitating art, the new law basically accomplishes what the Daily Mail fictitiously reported in 2012 that Bruce Willis wanted to accomplish; ebooks and other digital content can now be inherited.

That's one small right restored. While rights holders still demand real money for permission to use their offerings in pre-approved ways, at least a few people in the US won't have the lives of their digital goods expire along with them.

The clunkily-titled Uniform Fiduciary Access to Digital Assets Act law does the following:

The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.” If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees.

UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement. Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.

Even so, the ruling is very limited. Tech companies outside of Delaware will not be affected.

The new law in Delaware only affects Delaware residents and will be probated there. It does not affect the tech companies registered in the state, according to one spokesperson. “If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokesperson for the Delaware governor’s office, said by email.

Some goods, like purchases, can be passed on. Online accounts will likely remain out of reach for now. The Uniform Law Commission is pushing for adoption of these sorts of laws elsewhere, so there could be more of this in the future. Things are looking up a bit for consumers, it would seem.

Year by year, consumers are gaining more rights over the digital content they buy. If this trend continues then it won’t be long before consumers have the same rights over digital content as they do over physical goods.

There's still a long way to go before an iTunes accounts resembles a box full of CDs or records and there's still too many here-today-gone-tomorrow platforms/services selling what amounts to limited digital access instead of actual products, but a small restoration of the right of first sale is still a step in the right direction. The real problem is that we need these laws in the first place, which is the direct result of rights holders placing their piracy fears above their paying customers' concerns. That attitude will be much tougher to fix.

Filed Under: delaware, digital goods, heirs, inheritance, licenses, property

Churchill's Heirs Seek To Lose The Future By Charging Biographer To Quote His Words

from the who-owns-your-words dept

"If we open a quarrel between past and present, we shall find that we have lost the future." — Winston Churchill

We've talked in the past about how the heirs of Martin Luther King Jr. and James Joyce have a long and unfortunate history of being ridiculous about letting anyone quote their dead ancestors. Both families have abused copyright law to demand excessive payments, even for researchers and memorials and the like. Now we can add the heirs of Winston Churchill to the bunch. The Freakonomics podcast recently explored this issue with a biographer of Winston Churchill, Barry Singer.

Singer is somewhat obsessed with Churchill, running an entire bookstore devoted to Churchill. As such, he actually says he's had a very good relationship with Churchill's heirs for years. But when he finally sought to write a book on Churchill himself, the family went the usual route and claimed no quotations unless you pay. The approximate rate: 50 cents per word. Quoting other Churchill relatives also costs money and the rates may differ. As Singer explains, he basically had to significantly cut back on what he quoted, and completely excise some Churchill family members from the book. But he did have to pay for the 3,872 words he used that included direct quotations from Churchill -- though the family gave him a slight discount, such that he had to pay £950 -- which works out to about 40 cents per word.

Singer admits that, while some lawyers told him he could fight this, he gave in to keep up his strong relationship with the family. Of course, that only brings to mind Churchill's quote:

An appeaser is one who feeds a crocodile--hoping it will eat him last.

Also:

You have enemies? Good. That means you’ve stood up for something, sometime in your life.

It's too bad Singer chose not to stand up more.

To be honest, the podcast is a little weak in that it doesn't go too deep into the legal issues here and how they can impact history, culture and research. Furthermore, it does little to explore the actual law and how far the Churchill estate is overreaching. Oddly, it seems to suggest that this is just "the way" that the UK's copyright laws work (not quite true) and then does a little section on the attempts by the UK government to reform the laws -- even though the UK government decided to reject the idea of including a US-style fair use exception.

Stephen Dubner then talks to Steve Levitt about copyright in general, and claims that his take is "un-economic" because he doesn't seem to care much for stringent enforcement of copyright, and would prefer to share his own works more widely. I don't see how that's un-economic at all. In fact, as Levitt notes, his own status goes up as the work is more widely shared, increasing all sorts of opportunities elsewhere. I actually found this part of the discussion kind of disappointing, as there were a bunch of interesting nuanced directions in which it could have gone, including a much deeper analysis of the economics of copying, but instead, they went with the standard line from people who are just exploring this topic for the first time, which I'll paraphrase as: "well of course copyright is important, and we don't want anyone copying our book, but perhaps it goes too far in some cases."

The parts on Churchill are interesting, and hopefully Dubner (and Levitt?) will follow up in more detail down the road. For example, it would be great for them to bring on Chris Sprigman and Kal Raustiala, who they've had guest-post for them in the past, considering they've written an entire book on these kinds of things.

Filed Under: biographer, charging, copyright, freakonomics, heirs, uk, winston churchill

Rethinking Handing Copyright On To Heirs Beyond Death

from the doesn't-make-sense dept

As you're well aware, we've seen copyright extended over and over again, in ways that seem to go wholly against the purpose of copyright. After all, copyright is designed to encourage the creation of new content. Extending it after that content has been created makes no sense. The content was already created. However, not only has it been extended over and over again, but people are still pushing for it to be extended, even to the point that some claim that copyright should last forever (or, when pushed about the Constitution's demand that copyright be for limited times, they'll say "forever minus a day.") One of the common arguments in favor of copyright extension is that copyright should be passed down to "heirs," so that just as you can inherit a house, you should be able to inherit copyright. However, there's some new research challenging (or, rather, demolishing) that thinking. Reader (and frequent Techdirt critic) Wilton points us to this paper that questions the very premise of "descendible copyright" by Deven Desai.

Desai points out that the needs of "heirs" are quite often used to defend copyright extension because it creates an emotional image (you don't want the poor kids of an artist to go starving, do you?), but it's entirely misleading and unfair:

Yet, once one probes the heirs assumption, one finds it lacks any historical or theoretical basis. Instead, the assumption hides rent-seeking behavior, clashes between authors and publishers regarding who can extract that rent, and political maneuvering by the copyright industry; all of which are behaviors that copyright policy ought to avoid and/or prevent. In addition, the image of stealing food from heirs permits the debates to marginalize society's interest in a robust creative system with lower costs regarding the access to and use of knowledge and information.

In fact, Desai can find no support for the idea that heirs deserve the copyright of others. He does find it acceptable that copyright should last throughout an author's life, but should end upon death. I have trouble supporting the idea that copyright should even be that long, but the total dismantling of any support for the idea that heirs deserve copyrights is well worth reading. He points out that the whole point of copyright law is to encourage the production of new works -- and once someone is dead, they're not going to produce any new works, so it's silly to continue to "encourage" them.

For me, though, the most troubling part in reading the quotes Desai highlights of politicians and heirs fighting for copyright extension is this impression that somehow the public domain is bad. Just read this, from Senator Orin Hatch, to defend copyright extension a decade ago:

I would like to draw particular attention to the career of Walter Donaldson.... If the present copyright law had been in effect in the 1920's, all of Walter Donaldson's compositions would fall into the public domain within the next 2 years.

The implication,there, is that somehow this is a bad thing. Of course, reality is exactly the opposite. The deal with the public is that creators are given a monopoly for a limited time, so that it eventually goes into the public domain where everyone can benefit from it. Yet Hatch is implying that it's somehow a problem that the public would benefit from Donaldson's works.

Another stunning quote is from Samuel Clemens' (better known as Mark Twain) argument in favor of copyright extension, invoking his daughters as being too clueless and helpless to earn any money on their own:

My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughters, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

This reinforces the totally unsubstantiated claim that copyright is designed as a welfare system to "protect" those who have no other means of earning a living. Of course, copyright wasn't designed for that purpose at all. Why the government should support it as a system of welfare for the children of copyright creators is never clearly explained at all. Desai contrasts Clemens' assertions with those of Victor Hugo, who while a big supporter of copyright and authors' rights, also spoke eloquently of how important the public domain is, and how it needs to be supported. He does suggest a royalty system for heirs -- but not a copyright system, saying that the ideas belong to the public.

So, the next time you see someone arguing that copyright should be extended in perpetuity for the sake of "their children," perhaps note that there's nothing in copyright law that has ever supported such an assertion.

Filed Under: copyright, descendability, deven desai, heirs

Will The Supreme Court Give Steinbeck's Heirs Back The Rights To Some Of His Works?

from the watch-this-space dept

Michael Scott points us to an interesting discussion over whether or not the Surpreme Court will take on a case concerning whether or not the rights on certain John Steinbeck books should be returned to his heirs. There have been a series of cases involving similar challenges. A quick summary is that copyright law in the US has long held the right for the original creators to terminate earlier grants of their copyright at certain defined periods of time. Basically, the reasoning was that early on in a content creator's career, they may need to grant the copyright to a large company (publisher, studio, etc.), but later on, after a certain amount of value is established, they should have the right to reclaim the copyright from whoever they granted it to. This seems problematic on a whole variety of levels, but it's the law.

With changes to copyright law in 1976 and again in 1998, this right was once again reiterated -- along with a clause saying that this right to terminate such grants exists "notwithstanding any agreement to the contrary." The reasoning, supposedly, was that this would stop powerful publishers/studios from getting content creators to sign away such termination rights (which had happened prior to 1976). This has resulted in a series of lawsuits, where heirs of old content creators are trying to reclaim the rights to certain content. Some of the famous cases have involved the characters Superman and the dog Lassie.

The latest battle involves Steinbeck's heirs, and their desire to regain control of certain Steinback works -- mainly for the purpose of selling the movie rights. Different circuit courts have ruled in somewhat contradictory ways on the issue -- which is the sort of thing that is helpful in getting the Supreme Court interested.

That said, it's difficult to see either side having much in the way of moral high ground here. Historically, this wouldn't even be an issue, because the works of Steinbeck should be public domain material by now -- under the terms of copyright when he wrote them. The fact that they're not in the public domain is a huge travesty, and makes the squabbling over which individuals or organizations (who had nothing to do with the actual content in question) should get to profit from these works particularly silly.

Filed Under: copyright, heirs, john steinbeck, termination

Do J.R.R. Tolkien's Kids Deserve Money For The Lord Of The Rings Movies?

from the what-did-they-have-to-do-with-it dept

There are some competing opinion pieces in the LA Times, starting off with one siding with J.R.R. Tolkien's kids in their legal fight for royalties from the Lord of the Rings trilogy movies:

Tolkien obviously isn't Peter Jackson, who directed the franchise, or Liv Tyler or Viggo Mortensen, who starred in it, or New Line Cinema, the studio that financed it, or Miramax, which owned the film rights for a second but couldn't get the movie made, or producer Saul Zaentz, who bought the rights in 1976. He's just the guy who dreamed up the cosmology, the whole shebang of hobbits and dwarfs, orcs, ents, wargs, trolls, whatnot.

Then, there's the other side, pointing out that while it might be true that they legally deserve the money, it doesn't make any common sense:

I find it offensive to common sense to argue that the heirs of J.R.R. Tolkien (who are as dismayingly numerous as Kennedys in the court filing) are entitled to a shilling for work in which they had no hand and which was completed in 1949.

Most of the essay focuses on the question of the length of copyright, which we all know has been expanded to ridiculous lengths. However, it does seem like a reasonable question to ask why the kids of Tolkien deserve money for a movie they had nothing to do with based on an idea they had nothing to do with.

Filed Under: copyright, heirs, lord of the rings, tolkien