3 ways to deal with digital media when you die

A U.K. paper created a fuss this week when it reported that Bruce Willis would sue Apple (s aapl) for the right to pass on his iTunes collection to his children when he dies.

The story turned out to be baloney and was quickly debunked by Willis’ wife. But the tale still raises an important point: how do you leave digital books and music to your loved ones?

The Problem

Last week, a Wall Street Journal story called attention to a long-standing issue that many people are just beginning to discover: we don’t own our iTunes songs, Kindle books and other digital debris.

Here’s why: When you click “I agree,” you don’t receive a piece of property but instead get a license from Apple, Amazon (s amzn) or whoever. And the terms of the license say the media in question is just for you. Unlike a book or a record, digital media can’t be transferred to your friends or, say, to your beloved grandson on your death.

Professor Richard Gold, an intellectual property expert at McGill University, summed up the legal implications of iTunes after death in an email to GigaOM:

Apple presumably has a license to distribute music and it then sublicenses to customers. Licences provide them more control on our use — the number of computers, sharing, etc. The benefit of the contract (licence) should become part of the estate but this would depend on the wording of the licence. This would not necessarily permit a transfer — you cannot force Apple to agree to an assignment of the contract — so would not be of much use. The only way I could imagine around this would be to say that a property right of some sort was transferred through the contract but I can’t think of an example that would work.

The upshot is that you can’t leave iTunes as property in your will because it’s not your property in the first place. State legislatures are beginning to take up the issue but it will be years (if at all) before we have a “who gets your iTunes” law. But don’t fret. Despite the weird licensing rules, you still have options to ensure Junior gets your digital Beatles collection:

Option 1:  Create a fancy legal trust

The original U.K. news story reported that Bruce Willis was asking his lawyers to create “family trusts” to hold his digital music. Since then, others have reported on fancy legal tools like “DAP Trust” to circumvent the iTunes rules. David Goldman, the man behind the DAP trust, says he is working on software that will let estate lawyers offer digital inheritance to their clients.

The problem here is that there is no guarantee a trust will work. After you die, the benefit of the trust would transfer to someone else — which appears off limits under Apple’s rules. “I would want to see the contract,” says Gregg Weiss, a New York estate lawyer. “You can’t change a policy in a license through a trust.”

Option 2: Burn your media onto a device and put the device in your will

Apple, Amazon and other retailers permit users to download digital books or music to multiple devices. This means that Bruce Willis and the rest of us can load up an e-reader or an MP3 player with content and then bequeath the device. Unlike the digital media, you do have a property right in the device.

Sticklers might note that Apple or Amazon have the right to take the digital content away from your chosen heir or heiress, leaving them with a barren Kindle or iPod. But we’re betting the lawyers for those companies have better things to do than crash wakes and inspect devices.

Option 3: Write down the darn password

This is the simplest and most obvious answer — simply provide your media passwords to your loved ones. Weiss, the estate lawyer, says it’s already common practice for attorneys to advise their clients to prepare a list of banking passwords. Simply add your iTunes account to the list and place it an envelope or an email to be sent when you die.

If you want to be technical, you could also provide the password in your will. Your digital songs and e-books are not your property — but your password is. Handing it over will let your digital media live on.

(Image by Chris Harvey via Shutterstock)