Death and Taxes, Sure . . . . but what about Death and Facebook?

I liked this link I found on mashable  thanks to the Wills, Trusts & Estates Prof blog I subscribe to.  Entitled “How 1 Billion People are Coping with Death and Facebook,” I think the article is more about how Facebook provides both a new means of grief expression and support, and also another avenue for death denial. . . .

I think of my dear late friend Matt, a collaborator on several bar association projects with me, as well as my only ever “tech support” guy.  He is still with me on Google +, which I find comforting.  Where do we go after we die?  That is one of the “big questions” in life. . .  This post is concerned with a slightly narrower issue that looks at the different levels of “immortality” online.    Speaking of immortality, and what you might want to be remembered for, here’s a link to a story about Billy Ray Harris, a homeless man in Kansas City, who returned a diamond ring to a woman who mistakenly put it into his change cup.   Just a bit of gratuitous feel-good stuff for this post.

A law blog I check periodically on digital estate planning issues is www.digitalpassing.com .  The blog’s author, Jim Lamm, posted on Feb. 18th about the digital afterlife from a legal perspective.  There are several commentators who are dealing thoughtfully with these questions that are breaking new legal ground.

Colorado doesn’t yet have a part of our probate code amended to consider access to and rights in digital assets for agents under durable powers of attorney, those acting on behalf of incapacitated persons and personal representatives of decedent estates.  All of these folks would be acting as “fiduciaries,” and  there is effectively a gray area surrounding rights, responsibilities and access to property and accounts.  The Uniform Law Commissioners, the same group who brought us the Uniform Power of Attorney Act (adopted by the Colorado legislature and in effect since January 2010), are working on this problem.

What makes these questions particularly challenging are twofold: the practical difficulties relating to finding someone’s password or getting around their encryptions (for some this is extremely difficult), and couple these with an interesting combination of contract law, state law, and federal  law relating to the internet, using data of another and privacy – and this can be quite a challenging mix!  I’m not going into those services which promise to keep your passwords safe, allow for some kind of a plan for internet mortality in the event of a person’s demise; or one I saw recently that promises to wipe your internet footprints.

Okay, so what about other online presence and persona besides Facebook, what about writings on blogs (sometimes these become books) and other intellectual property? Famous authors can retain licenses for the original works, but the bigger issue for some is how long does that legally protectable interest or copyright last?  Here’s a blog post about a federal court proceeding by a scholar against the Estate of Arthur Conan Doyle (author of Sherlock Holmes).  Copyright law is governed by federal  law, and there have been a few authors of works who were obscure and penniless during their lives but won posthumous acclaim and their estates became wealthy.  Copyrightable works include writings (literary works), music, choreography, audio and video (or other “moving pictures) recordings. Under current law (the 1976 copyright act and the Sonny Bono Act) it looks possible to extend copyright protection for seventy years beyond the life of its author or creator.  This is where Mickey Mouse, Superman and lots of other famous characters work their way into federal laws. . . .  Protection is extended to “original works of authorship fixed in a tangible medium of expression from which such works can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”  17 U.S. Code sec. 102.

Digital assets in the probate context (here I mean as used by an agent acting under a power of attorney or by a personal representative in a decedent’s estate) are at the intersection of federal and state law and can involve contract and property rights along with potential criminal implications when a person acting on behalf of another may be violating the agreed upon terms of use for a particular account.  Stay tuned for future posts on this timely and interesting topic.

©Barbara Cashman     www.DenverElderLaw.org

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