By Ryan Compton
Bruce Willis may take a lot of chances in his movies, but recent newspaper stories reported he’s not interested in taking any chances with his real-life digital media. While the statements in these press reports, which indicated that Mr. Willis was considering challenging licensing terms prohibiting transfer of his digital media collection after his death, have since been retracted, the issue has caught the attention of digital media purchasers. Like many, Mr. Willis presumably has extensive physical and digital media collections he would like to transfer to his heirs; however the law treats the transfer of physical and digital media differently. While it seems Mr. Willis may not be interested in taking action at this time, his reported concerns shed light on an often overlooked discrepancy in transfers of media containing copyrightable expression.
For the last 150 years, entertainment lovers have purchased their favorite media on one physical format after another: wax cylinders, piano rolls, vinyl LPs, 8 tracks, cassettes, Compact Discs, MiniDiscs, BetaMax, VHS, DVDs, BlueRay discs. But while the various forms have evolved, one fundamental characteristic has remained the same: what happened to these assets when their original owner passed away. Each physical item and its title passed on to the heirs of the deceased, subject to state estate law. Further, the First Sale Doctrine prohibited copyright owners from blocking such transfers: after the first sale of an item embodying copyrightable content, the copyright holder’s rights to control that particular item is exhausted. The owner of that item can distribute, sell, or otherwise dispose of it as they please.
Fast-forward to today, and digital purchases of copyrighted materials are quickly becoming the primary market for such goods. Movies, video games, music and books are all being delivered in downloadable and non-downloadable streaming formats, by subscription, rental, or purchase, and through various services and service providers. In 2011, for the first time, digital music sales were higher than physical music sales. More and more television is watched on laptops; more and more e-readers are carrying hundreds of books.
As paperbacks become interchangeable with e-readers, or DVD collections combined with On-Demand movie purchases, few buyers realize the long-term implications of their choices: the First Sale Doctrine does not apply when we purchase these movies, video games, music and books as a digital download or stream rather than embodied in a physical object. Few buyers realize that each of these downloads is governed by a license agreement that may not transfer ownership of anything to the purchaser, but rather provide a non-transferrable license to use the media in ways only permitted under the license. This is the agreement between the user and the service provider, which, in most cases, has not yet provided for true transferability of licensed purchases.
Mr. Willis is not the only digital media customer concerned about the future of his media collection: growing concerns have caused others to consider potential solutions to this situation, including creating a trust or simply leaving a password to the account in their will. In the meantime, service providers and content owners may begin to consider alternate licensing and transfer terms as well because, while customers can’t take it with them, many feel it would be nice to figure out how to pass it on.