Beyond the Clouds, Part 2: What Happens to the Files You Store in the Clouds When You Die?

Abstract

This paper considers what happens to users’ rights in relation to the digital files they have stored in the cloud when they die. It is based in part on a survey of the terms and conditions of popular consumer-facing cloud services. A minority of cloud terms of service explicitly exclude heirs inheriting rights to access files stored in the cloud. Most terms do not address the point directly, but instead exclude the assignment of users’ contractual rights and copyright licenses. As a result, these rights and licenses do not constitute things in action. We argue that such rights will therefore not form part of the user’s estate and so not be transmitted to his or her heirs when the user dies. Unlike for physical assets, heirs therefore lack a clear legal claim to recover a deceased’s digital files from the cloud, many of which may instead be lost or deleted. This paper considers the extent to which this outcome could be challenged under consumer protection law and whether the law should be amended so as to grant heirs rights of access to digital assets. The paper focuses on English law, while drawing on examples from Canada, the United States, Germany, France, and the Netherlands.

JEL Classification: K1, K10, K11, K12, K36, D18, O34, P14