Focus

Online rites of loss, loss of rights

By Michael Moffa and Kane Wu (China Daily)
Updated: 2010-07-22 07:55

Do you know whether the fate of your online assets is chiseled in stone? [File photo]

You or a loved one dies. Who gets access to the stock buy or sell orders, blogs, registered URLs, photos, poems, eulogies, emails and even avatars and cyber (un)real estate and virtual money left online after death (or incapacitation)? Surprisingly, you or they may have already lost ownership of many tangible and intangible treasures if you have even once unthinkingly clicked 'I agree' to 'Terms of Service' Michael Moffa and Kane Wu report.

Of course we smile for and at smiley-face photos posted online at Facebook, Flickr, Picasa, MySpace and countless other social networking, dating and vanity sites. But there are two special, nonetheless intimately related reasons for these photos to make us cry - and cry hard.

First and obviously foremost, many of us will weep when the friend, relative or celebrity icon in the photo has died, when the sweet face under the floppy hat and behind the familiar "high-2" (V-sign) is gone forever, perhaps to be enshrined in one or more of the increasingly popular online memorial services.

In addition to the universally known US-based Facebook, which will as a default create a memorial page upon the reported death of a member, there are also mainland and Hong Kong subscriber sites, including Beijing-based Netor.com and the new Hong Kong Food and Environmental Hygiene Department's commemorative site, www.memorial.gov.hk, both of which, unlike Facebook, specialize in full-service earth-free Earth-friendly cyber-crypt encryptions of memorials and memorabilia - the free Hong Kong government site being restricted to people buried or cremated in facilities operated by the government.

A Tianjin mother nicknamed Shiyue2168, whose 21-year-old daughter was killed by a drunk driver in 2006, when she was in her junior year in a university in Tianjin, has memorialized her in www.netor.com's online cemetery. Describing it as a place where she can reminisce and ease her pain, she said, "The registration is very simple. I could start using it the day I created an account. And it is cheap." She posts pictures and videos of her daughter on the page and, poignantly, writes articles addressed to her regularly. Offering a hint of the solace she finds there, she said, "I can see my departed daughter there every day."

Bereaved and naive

As for the second reason to weep - and ranking as a close second to the pain of losing a loved one, you may absolutely wail when you learn that on some websites many of your or the deceased's ownership rights to those posted photos and other mementoes (and possibly even the hard-copy albums in our homes!) may have completely expired (in both senses) the instant you or they clicked "I agree to terms and conditions of service."

It is quite possible that control of these precious memorabilia will be irretrievably lost, forfeited to the online service and its 3rd-party allies, the new and exclusive owners of some applications of our most precious treasures, both literal and sentimental.

For example, Classmates.com, a huge global social networking site catering to nostalgic and "in-your-face(book)" high school alumni, states it "owns" any "compilation", "collective work" or "derivative work" that contains your posted "Content", which presumably includes any new photo album, book or magazine cover, CD, advertisement or memorial you, they, their affiliates or any other parties create using the photos you upload to their site: "You acknowledge that Classmates owns all right, title, and interest in any compilation, collective work or other derivative work created using or incorporating the Content. ... No compensation will be paid for the use of your Content, including, without limit, any photograph you may provide." (Quoted from their terms of service.)

This provision seems to entail that as soon as a Classmates.com subscriber posts her own photo of her deceased husband at Classmates.com or in any compilation anywhere else, for that matter, Classmates.com will own-outright, exclusively and forever, even after the photo is removed from the website - the "album" that she creates and into which she inserts the photo online. The photo and all those that were originally hers will irreversibly be part of the album that exclusively belongs to the company - even after she deletes the photos and album from the site or if it appears in some third party's future compilation, derivative work or collection.

Presumably, Grandma's posted granddaughter's photo could be sold to a diaper or baby-food company and plastered on packaging, websites and billboards all over the planet, with neither the consent nor compensation of herself, her grandchild or the child's parents.

Equally conceivably, Grandma's photos of herself could even end up in a soft-porn or dating website gallery (a.k.a. "derivative work", "compilation", "collection") with a name like www.grannies-gone-wild.com (a still available URL!) - again, with neither consent nor compensation. (Note: Neither Classmates.com nor its authorized corporate relations agent, United Online Corp, provided any comment, despite repeated back-and-forth China Daily correspondence with the latter about the terms of service.)

Martin Kratz, a well-known legal expert in the areas of intellectual property and technology law, is a partner in the international law firm, Bennett Jones LLP, which has extensive mainland and Hong Kong dealings. He had this to say to China Daily about the Classmates.com ownership claim:

"In the example raised (regarding Classmates.com's clause) the owner of the copyright in the original work would still own the copyright in that work. A claim of ownership to the derived or compilation work should not affect the ownership in the original work." However, he added this cautionary tale: "The courts have looked at the issue of the balance of rights between a contributor of an individual work and a publisher of a compilation work (a newspaper) in Robertson vs Thomson Corp, 2006 SCC 43 (Supreme Court of Canada). The Court found that the author retained her rights in the articles submitted to the newspaper, such that the newspaper could not separately republish those articles in digital form, but determined that the newspaper had the right to continue to make the article available as part of the compilation work (the newspaper itself), which could be made available in digital form."

So, even though widows and grandmas retain ownership rights of their original files (unless the enforceable terms of service specify that these are fully transferred), they may not be able to prevent Classmates.com from not only using, but also from owning derivative works, collections and compilations that incorporate these women's original stand-alone photos of granddaughters, themselves, their husbands or anything else that they previously owned and uploaded to the site.

As for Grandma's photo ending up at www.grannies-gone-wild.com, Kratz said "The breadth of the license does raise concerns about the potential for unintended uses of the posted materials. The contributor may not think about the potential uses, as was seen in the US decision, Easter Seal Society for Crippled Children and Adults of Louisiana Inc v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987), in which volunteers who conducted a mock Mardi Gras-style parade to raise funds for their charitable cause were shocked to find the images used in an adult film."

But there is a sliver of hope for these bereaved widows and naive grandmothers. Kratz added, "Subject to the applicable terms of use that the user has agreed to, users may, depending on the jurisdiction, have other rights such as moral rights, and there may be other legal considerations, such as the impact of privacy law, that may provide some constraints on what a website operator may do with posted content." Also commenting on the ownership issue, the Hong Kong Intellectual Property Department told China Daily that "in Hong Kong law, the creator of original content retains a 'moral right'. That is to say that the site owner would have to acknowledge the creator as author, not attribute the work to someone else and respect the integrity of the work."

Smeared in stone

The problem with this is that, given the probable vagueness, ambiguity or variability of the latter "integrity" condition over different jurisdictions, quite possibly reputations and issues may be smeared long before they are (like your own tombstone epitaph) eventually "chiseled in stone".

As an example of how policies, interpretations and legal outcomes can vary across companies and jurisdictions, and in contradistinction to Classmates.com, the terms of use at the Hong Kong government's memorial site make no claim of automatic loss of ownership of any posted content or of derivative, compiled works. Instead, its legally binding English version notifies registrants that the government will own all content except for what is posted or otherwise specified by registrants, thereby fully protecting grieving family members' rights.

These thorny issues include access, control, liability and ownership of everything you may leave behind online after your death or permanent incapacitation, including not only photos and emails, but also your online buy/sell stock orders, ongoing automatic debits and renewals, your blog, your registered URLs, your own music, poetry, email drafts or posted manuscripts and even your virtual (un)real estate and "money" acquired and developed on popular sites such as www.secondlife.com, created by Chinese-born Ailin Graef, better known as Anshe Chung.

Online and offline, not only may our rights disappear before we do, but also our service providers and technologies may vanish, since ISPs, host sites, data recording and reading technologies, e.g., floppy disks, may cease functioning because of bankruptcy, mergers or obsolescence and, like all of us, "have their hour on the stage, 'til they are heard (seen/read) no more."

Backup for your DNA

Word to the wise: Until you can literally back up your evanescent, unique DNA, you better back up the even more ephemeral technologies and services you've chosen to serve it. This means that in addition to a formal will and authorization of provision of access by your executor or other designated proxies, you should have technological backup, in the form of hard copies, CDs, alternate online archives or whatever the most up-to-date technologies provide.

One way, in addition to a fully prepared executor, to ensure at least post-mortem access to your online assets and memorabilia has been devised by a number of niche entrepreneurs: These include US-based websites, such as www.deathswitch.com and www.legacylocker.com that help protect online legacies. They claim to restore the online passwords and other information of their clients and ask clients to choose a proxy who is to be entrusted with these.

If you imagine that the variability of risks of lost ownership, access and control either before or after death (or incapacitation) is limited to social networking sites guess again: In response to a China Daily request for clarification of its policies governing access to a deceased registrant's stock trading accounts, a spokesperson for Sun Hung Kai Financial, a major online stock brokerage website in Hong Kong, dealt with the request by saying, "Each specific situation is addressed on a case-by-case basis." - which suggests that there is no uniform, predictable outcome regarding the control of such orders and assets. Raymond Tong, director of Raymond Tong & Co., Solicitors, Hong Kong told China Daily that "if the broker or bank learns about the death of the user, they must stop processing any pending orders. But if they do not have actual knowledge, they will not incur any liability if they complete the order after the death. It really depends on the contract between the user and the bank/ broker."

As for more general online banking services, Hong Kong's banks make their policies clearer: The Bank of China (Hong Kong) replied to our email enquiry with the following: "Generally speaking, when the Bank is informed of the customer's death, the accounts (including Internet Banking Services) of the deceased will be frozen and any corresponding margin account's open position will be settled. In the case of a personal account, the deceased's account will be operated on the basis of a proper probate. Merely producing the Death Certificate of the deceased will not be accepted for operating the account of the deceased."

Explaining Hang Seng Bank's comparable policies, Jennifer Tam, corporate affairs manager with Hang Seng Bank's Corporate Communications Department said, "Any instruction for operating the deceased's securities accounts will not be allowed until the production of proper Grant of Representation of the estate of the deceased issued by the Court of Hong Kong."

So, without very prompt intervention, those big, open buy/sell orders of a deceased spouse may get carried out, like marriage itself, for better or worse, but beyond 'til death do you part.Again, like a bad marriage, an online legacy can represent a (net) liability, including automatic renewals and debits for online services, or worse. Suppose, for example that your email contains a libelous attack on or up-skirt photos of an unsuspecting third party, sent to your email, and that, after your death, these are made public, e.g., the photos are uploaded to YouTube by your buddy to whom you gave your email passwords. Is there any possibility of a libel or defamation suit against your buddy and/or the original photographer/libeler who sent you an email or other document that libeled a 3rd party? Or against your estate, in the event you were the source of these? With respect to Hong Kong law, Tong suggested that "if the defamatory document or email is made known to the public or published, it is possible to start a libel law suit against the one who published or issued such a document or email."

Echoing advice offered by Martin Kratz, the Hong Kong Intellectual Property Department recommends caution and preparation in addressing online legacies and assets: "Like cash and real property, intellectual property rights can form part of a deceased's estate. But because they are intangible assets, the job of an executor can become very difficult. We advise everyone to make a valid will and update it from time to time. If possible, they should list their most valuable intellectual property assets such as revenue from patent licenses or copyrights in commercially-published works. Doing so can reduce the uncertainty for the executor and soften the heartache of the bereaved."

Good advice, if you want peace of mind now, before you or loved ones "Rest in Pixels".