Virtuality & Mortality: Who Owns The Online Content We Create After We Die?

The Oklahoma state legislature in a completely sensible (and therefore somewhat baffling move for a government agency) move, has created a new law regarding virtual property and what happens to it after you die. The law went into effect on November 1, and is the first law of its kind in the United States. I like to look at is as ‘The first domino has fallen’, as other states are sure to follow suit.

Though those of us who live our lives online in any major capacity are likely wondering what took so long for such legislation to exist, the fact that it’s coming into being now is a testament to how much of our lives is stored as data online, as well as the boom in virtual goods, and a recognition of their potential value. It would seem that sharing and experiencing one’s life in a digital fashion (whether that be by using an avatar in a virtual world, or simply by sharing their lives in another online capacity- facebook, twitter, livejournal, plurk, etc.) is now mainstream enough to warrant specific legislation designed to protect those digital assets in the event of their creator’s death.

While many sites actually have a specific ‘death policy’ in place, it’s only now that those policies may come under legal challenge, as more places adopt similar legislation designed to protect digital assets. Finally though, digital assets are being viewed in much the same was as regular, physical ones.

However, this new law doesn’t come without a few small bugs. The creator of the original bill (Ryan Kiesel, D-Seminole) seemed to have Facebook most prominently in mind when creating it, since he is quoted as saying, “The number of people who use Facebook today is almost equal to the population of the United States. When a person dies, someone needs to have legal access to their accounts to wrap up any unfinished business, close out the account if necessary or carry out specific instructions the deceased left in their will”.

However, this bill ultimately may pit itself against Facebook’s own Terms of Service, in which people give up some control of their IP rights: “For content that is covered by intellectual property rights, like photos and videos (“IP content“), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.’

Image from What Happens To Our Online Identity After We Die?

The question becomes then, does Facebook (and other sites with similar IP agreements) recognize someone who inherits such an account as being an owner, and can they delete things from it (or for that matter add to it) as they see fit? If so, should digital assets be viewed a bit differently- should sweeping changes be allowed by the inheritor? It’s an interesting question, since digital information can be manipulated in ways that don’t quite mimic the methods used in the real world. For example, you can inherit a house. You can sell it, tear it down(assuming it’s not landmarked), paint it purple (assuming there’s no local ordinances against it). But that’s not quite the same thing as inheriting someone’s online presence, particularly something that’s an ongoing narrative, like a Twitter, Livejournal or Plurk account. Altering that narrative is a bit like rewriting history (and not always for the better). As these digital laws develop, they will have to take these questions and scenarios into account. This new law is only the beginning, and it has yet to be challenged.

Since this is the first law of its kind in the US, it remains to be seen what the ultimate shakedown of this new type of legislation will be. After all, Facebook is hardly the only site out there who takes some level of IP ownership away from you when you sign up via their Terms of Service. Many other sites do exactly the same thing, and I’m sure somewhere in a room somewhere, lawyers are figuring out exactly what changes or challenges need to be made to this new bit of legislation in order to protect their clients from being sued over the potential dispute between TOS and state law(or potentially eventual state law, in most cases.)

Virtual Worlds are more Complicated

But let’s be honest- I don’t give a tin damn about Facebook. I don’t even have an account there (never have). My interest is in virtual worlds. As much as this bill was designed with things like drunken photos taken on vacation and videos of the dog chasing its own tail in mind, when you try to port the concept into the environment of a virtual world, it becomes more complicated. Why? Money.

While photos, videos and words certainly have value, virtual worlds also contain virtual goods. Consumers who own them, assuming they’re transferable, can also sell them. Creators make money from selling them outright. In the case of virtual worlds with a two-way cash exchange such as Second Life, what someone has in their inventory may very well be worth some real life cash. And nothing brings out the quest for cash than someone dying. Everyone can tell a story about the fight over assets when someone has died. When someone is famous or wealthy, it can become even more of a public spectacle. So why would it be different for SLebrities, or people who have made a lot of money inworld?

The Death Policy

As happens, Linden Lab has a policy regarding residents who die in real life. Second Life has been ahead of the game for a long time now. As long as you can meet the Lab’s criteria to prove that you are the rightful inheritor of the account, you’re golden. Thus far, the law hasn’t caught up with virtual goods to assess their monetary value in cases like this. With the new focus towards the digital world brought on by the new Oklahoma law, it would not be surprising if this changed, and the potential value of those goods were taken into account when calculating taxes on inheritance. Since the projected value of virtual goods is expected to top ten billion dollars (US) in 2011, it is probably an inevitable conclusion that at some point governmental agencies are going to look into taxing those goods to get a cut of the action.

Nature Abhors a Vacuum

As soon as there’s a new void on the frontier, whether that be meatspace or virtual, someone will fill it. Already there’s at least two companies that have sprung up to assist with digital asset managment. It’s sort of like pre-buying a plot in a graveyard, except it’s handling your digital detritus instead of your corporeal body. While these are primarily marketed towards storing usernames and passwords for communications channels, there is no question that virtual goods managment will soon become part of the total package, since those are worth money and anything worth money has a built in market for protection just waiting to be explored. Apparently, Entrustet already has figured this part out, marketing itself to attorneys, specifically calling out “Let Entrustet provide you with the educational materials and tools you need to step into the 21st century of estate planning, while opening a new revenue stream and offering your clients the best estate planning solution in town.’

A Cultural Shift for a Digital Age

The most interesting thing about the Oklahoma law to me is that it signals a shift in mainstream culture. It’s a tipping point, showing a shift in how people think and the things they consider in their everyday lives (and deaths) that would have been unheard of in previous times. Even as little as ten years ago, something like this would not have been easily imagined except perhaps in a futuristic novel somewhere. It’s interesting to be able to point to ‘and this is when this changed.’; a dividing line between pre and post.

So now everyone gets to think about who to bequeath their online inventory to. You might consider organizing it first- otherwise no one will ever be able to find a damned thing.