November 1, 2012
Transfer iTunes on Death?
The advent of digital media has made it much easier to amass an enormous collection of music, movies, television shows, etc.. My cousin Bob told me that he has more than 10,000 songs on his iTunes playlist a few years ago. The need to store and catalog compact discs, cassettes and records (for those of you old enough ) is ostensibly an antiquated practice. The smart phone and laptop have replaced them.
In terms of estate planning and digital media, a common question raised is whether or not you can transfer said digital media, e.g. iTunes, to a beneficiary when you pass away. The short answer is no. According to the terms and conditions of iTunes:
a person "may not rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application from the Mac Computer or iOS Device before doing so. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application)."
The above legalese means that only the original licensee is allowed to use it, not your friends, neighbors, family members, will beneficiaries or trust beneficiaries. So your entire collection of music, The Beatles, Metallica (personal favorite), Michael Jackson, Elvis, Abba, Pink Floyd, etc., is for your ears only you could say.
For reference, a license is a permit to own or do something subject to certain restrictions. Many people erroneously believe that when they purchase a song through iTunes, they own the song outright. As mentioned, this is simply not true as the terms and conditions specify that "The Mac App Store Products and App Store Products (collectively, “App Store Product(s)”) made available through the Mac App Store Service and App Store Service (collectively, “App Store Service(s)”) are licensed, not sold, to you."
The legal term "license" is applicable to the daily lives of many Californians, though you probably never think about it. For example, a California driver's license is roughly analogous to the license granted by iTunes to a song purchaser. Provided you meet the requirements, the state of California will issue you a license to operate a motor vehicle. If you cannot abide by the rules, i.e. incur excessive speeding tickets or DUI convictions, the state may rescind your license. The same holds true for an iTunes song, use it in the correct manner, namely follow the terms and conditions, or else you will lose your right to use it.
Ultimately, I am sure some people will find a way around the license agreement but my point here is that iTunes does not legally permit it, since you merely have a license and thus do not own your iTunes catalog.
If you have any questions please call my office at (408) 866-8382 for a free consultation or email me at firstname.lastname@example.org.