Back in the day, purchasing a video game meant going into a store, picking up a colorful box, and installing the software on your computer or inserting the cartridge into your video game system. You could easily give these games away to your kids or heirs. Today, online services like PlayStation Plus or Steam are becoming the dominant form of buying games, making some hard copy PC games prized collectibles.
Do you happen to have a sealed copy of Bethesda’s 1994 The Elder Scrolls: Arena? It’s now worth $22,500. Opened copies sell for considerably less but are still valuable. Video game collections represent significant investments and can make a substantial contribution towards your estate. But what about downloaded games? In the all-digital age, do you lose your video games when you die? In this second installment of our digital legacy series, we will take a look at what happens to your digital game collections when you die.
The Two Issues of Digital Inheritance
If you have read our prior article, What Happens to Your Social Media when You Die?, you might already be familiar with the first major issue affecting digital estates. To recap, although you own digital assets you created, you or your heirs might lose access to them if you do not plan ahead for emergencies. Therefore, you should create a digital estate plan to preserve your accounts and ensure that your content remains accessible and manageable. Software, which includes video games, introduces us to the second main issue afflicting digital estates: ownership. If you do not own an asset, you cannot pass it on to your heirs. So, do you actually own software, like games? Let’s find out.
Do You Own Digital Video Games?
The question of ownership might seem straightforward. If you buy it, you own it. For tangible property, like jewelry or a watch, this is true. For intellectual property, like software or movies, the issue becomes a bit more complicated.
The First Sale Doctrine
An old legal principle called the First Sale Doctrine states that once you purchase tangible intellectual property, you own it. The artist retains the exclusive right to make the first sale but cannot stop subsequent sales or transfers of that particular copy. So, feel free to give away – but do not copy – your used books, CD’s, and DVD’s. This legal principle stood for almost a century until software companies challenged it.
Compared to a book or a movie, software is much more expensive to buy. While you probably read a book once or twice, you might use software for years. Unlike movies or music, software becomes obsolete and requires you to upgrade to a newer version. Software makers make money by periodically selling you a new, updated copy. At the same time, they want you to retire their obsolete product and not resell it. After all, people might think twice about spending top dollar on the latest productivity suite when they could get a used, albeit outdated version, for far less. To achieve this, software companies include end user license agreements (“EULA’s”) with of all their products. These agreements usually state that you are not actually purchasing the software itself; rather, you are buying a non-transferable use license.
These EULA’s naturally run afoul of the First Sale Doctrine. Many countries, including the EU, have derided them as money-making schemes and invalidated portions of EULA’s that prohibit transfers. So, if you live in one of those countries, the following will not apply to you. However, if you live in the United States, you should know that courts here have gone the other way. The Ninth Circuit gave it its blessing to restrictive EULA’s in Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164 (2008) The Supreme Court has declined to review Vernor, leaving the law unsettled. It is unclear how future cases would turn out. For now, we have to assume that Vernor allows companies to opt out from the First Sale Doctrine and prevent you from conveying used software to anyone else.
Used Video Games
Restrictive EULA’s have all but eliminated the used software market. You will be hard pressed to find legitimate stores selling used copies of Windows, Office, or PC games. But you probably know of many stores selling used console game disks and cartridges. The business model of entire store chains like GameStop depends on selling used video games. How do they get away with it?
The answer is simple: game manufacturers allow it. Sony and Microsoft have both tried to ban resales of used video games when they introduced the PlayStation 4 and XBox One, respectively. But the huge second-hand market for used console games created a sufficient backlash, making them reconsider their original plans. As a result, Microsoft and Sony publicly stated that you are free to sell or give away physical copies of used video games. You can treat them the same as used CD’s or DVD’s.
Digital Video Games
Nevertheless, Sony, Microsoft, and Nintendo have not given up on the idea of controlling all video game sales. They have been chipping away at the used video game market by introducing digital game downloads and digital-only consoles that will not accept physical media. Instead of buying a game disc or cartridge, you purchase games online and download them to your gaming system.
The First Sale Doctrine does not apply to intangible property, like software downloads, allowing game makers to tie downloaded games to particular accounts. You might think you are buying a game or movie online, but you are actually just renting it for an indefinite period of time. This time ends with your death or whenever the online platform retires the content, whichever comes first. For example, Sony recently announced that, as of August 31, 2022, users would lose access to any purchased StudioCanal content.
The takeaway from this is that you cannot pass on digital video games, movies, or music because you do not own them. Whether or not you can transfer your access rights to that content to someone in your family is a different issue.
Sony PlayStation Network
You cannot transfer a PlayStation Network account to another person during your lifetime. Downloaded games are tied to a particular account. However, that account is not tied to a particular console. You can sign into a PlayStation account from any console or transfer data, including downloaded games, from one console to another. While this offers some flexibility, once a user dies, the user’s account and all downloaded games die along with that person. Once a representative of an estate notifies Sony of a user’s passing, Sony will close that person’s account, rendering all content permanently inaccessible.
This is, of course, a terrible solution for your heirs. Perhaps the entire family was using dad’s PlayStation account. If dad were to unexpectedly pass, his family would not only mourn his loss, but also the loss of all digital content and the memories tied to it. In this case, it might be best not to notify Sony of a person’s passing and continue using a deceased family member’s account. Naturally, this assumes that the deceased had shared his or her account credentials with his family. The surviving family members can then change the username and email, and unofficially reclaim ownership of that account.
Unsurprisingly, Microsoft’s position is the same as Sony’s. The Microsoft Service Agreement provides that accounts and their content cannot be merged or transferred to anyone else. Once again, the official legal position is that a Microsoft account and all its content dies with the user. Microsoft will close all accounts after two years of inactivity or upon request of a deceased person’s representative. Microsoft does not provide access to account data of a deceased person under any circumstances, unless required by law.
Once again, the unofficial solution is to assume ownership of a person’s account using that person’s credentials. While doing so would technically violate Microsoft’s Service Agreement, it is a solution Microsoft itself suggests in its official forums. As long as surviving family members have a way of accessing the account, they can change the main user’s alias and email address.
Like Sony, Nintendo only allows game and data transfers between devices you own. You cannot transfer your account or games to anyone else – during your lifetime or at death. This includes Nintendo’s own digital currency. While you are able to trade captured Pokémon – Nintendo’s famed pocket monsters – with other users during your lifetime, they sadly die along with your account.
Section C of the Steam Subscriber Agreement provides that you cannot sell or transfer your account to anyone else. It also provides that you may not share your password with anyone else and must notify Steam if you give out your password. Once again, legally, your Steam account and all its games die along with you.
Don’t Lose Your Digital Content
Purchasing (access to) digital games, movies, or music over the course of your lifetime amounts to a significant investment. You might be surprised that, as of 2019, the average digital estate was worth $55,000. Since then, the number has likely increased. As your digital purchases add up, you will want to think of ways to protect this investment. This includes working around restrictive user agreements. The good news is that you can secure your digital estate, but only if you act proactively.
1. Transfer Digital Content Informally along with Equipment
You may not own the games and videos, but you do own the equipment that provides access to them. Naturally, you can simply bequeath this equipment to someone else, along with your username and password. If you use multi-factor authentication, do not forget to include your backup codes. Then, your equipment will continue to enjoy uninterrupted access to your content. Although doing so might be at odds with the applicable terms of service, service providers are not truly interested in disabling accounts of grieving family members, as mentioned above. Moreover, in many states, including New York, you can set aside some restrictive terms of service with the help of your state’s version of the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”).
2. The Uniform Fiduciary Access to Digital Assets Act
All states, with the exception of California, Oklahoma, Louisiana, and Massachusetts, have enacted their version of the UFADAA. This Act recognizes the value and importance of digital assets, allowing you to delegate access after your death. The Act even allows you to set aside restrictive boilerplate user agreements, but only if you explicitly state so. New York’s version of the Act, NY Est Pow & Trusts L § 13-A-1 (2021), provides for the following options:
- If an online platform, like Facebook or Google, offers tools to designate a trusted user or another fiduciary to take over your account, and you use that tool, your choice is legally binding on your estate. Your online trusted user settings become part of your digital estate plan.
- If a site does not offer those options or you do not use them, you can specify custodians for your digital assets in your digital estate plan, which can be part of your will. You can also request deletion of digital content you do not want to share.
- If you do not take any action, the generic terms of service of each content provider will apply. This usually means that your digital assets will be lost.
As you see, the UFADAA is a powerful tool that affords savvy estate planners significant control over their digital estates. But like a magic spell, the key is to invoke it. As you continuously add digital content and open new accounts, the time to do so is now. Speak to us today to create a digital estate plan that safeguards your considerable online investments.