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

31 Pages Posted: 9 Jul 2019

See all articles by Johan David Michels

Johan David Michels

Queen Mary University of London - School of Law

Dimitra Kamarinou

Queen Mary University of London, School of Law - Centre for Commercial Law Studies

Christopher Millard

Queen Mary University of London, School of Law - Centre for Commercial Law Studies; Oxford Internet Institute

Date Written: May 13, 2019

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

Suggested Citation

Michels, Johan David and Kamarinou, Dimitra and Millard, Christopher, Beyond the Clouds, Part 2: What Happens to the Files You Store in the Clouds When You Die? (May 13, 2019). Queen Mary School of Law Legal Studies Research Paper No. 316/2019. Available at SSRN: https://ssrn.com/abstract=3387398

Johan David Michels (Contact Author)

Queen Mary University of London - School of Law ( email )

67-69
Lincoln's Inn Fields
Holborn, London WC2A 3JB
United Kingdom

Dimitra Kamarinou

Queen Mary University of London, School of Law - Centre for Commercial Law Studies ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom

HOME PAGE: http://www.law.qmul.ac.uk/staff/kamarinou.html

Christopher Millard

Queen Mary University of London, School of Law - Centre for Commercial Law Studies ( email )

67-69 Lincoln's Inn Fields
London, EC2A 3JB
United Kingdom

HOME PAGE: http://www.law.qmul.ac.uk/staff/millard.html

Oxford Internet Institute

1 St Giles
Oxford, OX1 3JS
United Kingdom

HOME PAGE: http://www.oii.ox.ac.uk/

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