Who Owns Digital IT Collectibles: 'The Law Hasn't Caught Up Yet'
By Terry Calhoun
Living as I do, in a farmhouse built in 1870 with lots of out-buildings, has only accentuated my tendency to collect things. Courtesy of the fellow who built Ann Arbor's Eberwhite subdivision early in the 1900s, and who lived in my house, I have a nice collection of old tools, hinge plates, door knobs, and the like. He was something of a collector himself, so I also have hundreds of pre-1900 medicine bottles which he apparently got when he bought out an old pharmacy and pill-repackaging company that used to retail out of the building in which Ann Arbor's classic, old-style ice cream outlet, the Washtenaw Dairy is now housed.
I have some modern stuff, too: One of the Macintosh TV/computers, black, oversized, and it really never worked all that well. But I have it, and its operating manuals and software discs. Likewise, I have stored away a mid-1980s KayPro "portable," which weighs about 60 pounds. Yep, it has a handle, looks like a big, heavy suitcase, and you can lug it around. I also have, somewhere on some disk or another, every e-mail message that I have ever sent or received—beginning in 1993. Oh, and I have a collection of about 200 slide rules.
You can decide for yourself whether you agree with my wife, or not, who is pretty sure that none of my collections will ever have much retail value, or a retail purchaser at any value. But, as I assure her, at least the physical objects and the files I have on one kind of disc or another truly belong to me, and will belong to her after I die. That's not so clear of about the thousands of files and pieces of information I have squirreled away all over the Internet.
It was around 1992 when the first World Wide Web browser was created and widely shared via the Internet. Ever since, confusion has reigned in the minds of the many people who think that the Web and the Internet are one and the same, not that it really matters for them. However, even before 1992, thoughtful groups of professionals were using the Internet for communication and information sharing.
My employer, the Society for College and University Planning (SCUP), was an early adopter of the Internet. In October of 1987, the first issue of what was then called "SCUP Bitnet News" (monthly), was transmitted to an early-connected group of our members. To our knowledge, what is now called "SCUP e-mail News" (weekly) and has ~16,000 subscribers, is the second-oldest continuously-published e-mail newsletter on (in? of?) the entire Internet.
You would expect a bunch of planners to be looking ahead, but I am nonetheless very proud of those SCUPers. We'll celebrate that 20 th anniversary later this year. This raises a question of ownership: Suppose that you had subscribed to our e-mail newsletter from the very first issue, and that you had all of the back issues stored on a Web 2.0 server somewhere out in cyberspace. Then you die. Who "owns" your e-mails?
It's not really a stupid question. There have been people paying attention to such issues, as evidenced by this blog posting: "When you die, who owns your e-mails?"
First there is the practical question: How likely is it that you, pre-death, could even remember where all of the digital things you have stored away online are, much less the user names and passwords to retrieve them all. Now, imagine the executor of your estate trying to find and use all of that information. It's really not likely. And it's really going to be a headache for someone.
Then there is the legal question: Even though we use the traditional language like "stored away" and "my e-mail folders," most of the ownership and access to digital information on the Internet is controlled by those long, tiny-print agreements that we all scramble past and agree to, because we are eager to get to the functionality. In many cases, you might own nothing of what you have "squirreled away."
The Forbes article "Who owns your e-mail when you die?" lists the following ways in which digital assets differ from traditional ones, each with its own twist on "ownership."
- Digital assets can be created and defined by contract.
- Some digital assets are subject to intellectual property law.
- Many digital assets can be endlessly duplicated.
- Digital assets may be stored in a tangible asset such as a computer and therefore may affect the value of the machine.
- In general, digital assets are licensed, not sold, and rights usually aren't transferable.
These days, when we read stories about people garnering $100k in extra income inside Second Life—and as Goggle uses a competition for students to draw 3-D campus maps (thus driving campus GIS folks nuts) in a not-too-subtle effort to recruit the students who will help it build a "Virtual Earth" that more and more people might actually be employed inside—it seems more and more likely that some of our finances will be getting tied up on line.
If you think about it, yours already may be. Do you, like me, "own" domains? Are they paid for by a company regularly and automatically tapping into a credit card? How will your spouse stop that, short of canceling cards, when you die?
Do your e-mail accounts overlap? Who's going to go through your personal e-mail accounts and remove the worthless business-related e-mails? Who's going to go through your business e-mails and remove the worthless personal e-mails? Who owns the digital images that you have stored away in Picasa—with copies on both your personal and work machines?
"With real estate, you have a survey and know exactly where the property is located," says Scott David, an attorney quoted in MSNBC's story. "With personal property, you have possession. Software and music are protected by intellectual property laws. But with e-mail or data, there is no traditional notion of property interest—in general, rights are established by agreements, and the law hasn't caught up yet."
"The law hasn't caught up yet." I wonder if it ever will.
Terry Calhoun is Director of Communications and Publications for the Society for College and University Planning (SCUP).