WHO OWNS A DECEDENT'S E-MAILS: INHERITABLE PROBATE

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WHO OWNS A DECEDENT’S E-MAILS:

INHERITABLE PROBATE ASSETS OR

PROPERTY OF THE NETWORK?

Jonathan J. Darrow* and Gerald R. Ferrera**

“E-mail is ‘comparable in principle to sending a

first class letter . . .’.”

—People v. Lipsitz

NTRODUCTION

In early 2005, military dad John Ellsworth made national news

through his seemingly innocuous request to be allowed access to his

deceased son’s e-mail account.

His twenty-year-old marine son, Jus-

tin, was killed in Fallujah on November 13, 2004, by a roadside

bomb.

Mr. Ellsworth wanted to collect e-mails that his son wrote and

received while in Iraq to create a memorial in his son’s honor.

Were

his e-mails similar to “sending a first-class letter,” with all of the at-

tendant implications for ownership and inheritability, or is the com-

parison mentioned in Lipsitz inaccurate?

Yahoo!, Justin’s e-mail service provider, complied with Mr. Ells-

worth’s request, but only after receiving an order from a Michigan

probate court.

Yahoo! stated that, in the absence of a court order,

* Assistant Professor of Business Law, Plymouth State University; Duke Univer-

sity (J.D.), Boston College (M.B.A.), Cornell University (B.S.)

** Gregory H. Adamian Professor of Law, Bentley College; Executive Director,

Bentley Global CyberLaw Center; New England School of Law (J.D.), Bentley Col-

lege (M.S. Taxation), Boston College (B.S.)

1. People v. Lipsitz, 663 N.Y.S.2d 468, 473 (Sup. Ct. 1997) (quoting ACLU v.

Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996)).

2. See Ariana Eunjung Cha, After Death, a Struggle for Their Digital Memories,

ASH

. P

OST

Feb. 3, 2005, at A1.

3. See id. See also Jennifer Chambers, Family Gets GI’s E-mail,

ETROIT

EWS

Apr. 21, 2005, available at http://www.detnews.com/2005/metro/0504/22/A01-157

676.htm

4. See Cha, supra note 2.

5. See Tresa Baldas, Slain Soldier’s E-Mail Spurs Legal Debate: Ownership of

Deceased’s Messages at Crux of Issue, 27

’

L.J. 10, 10 (2005)

(citing In re

Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005)).

281

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282 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

such disclosure to a third party would violate its privacy policy.

Ya-

hoo!, which in a recent year had thirty-nine million free e-mail ac-

count holders,

requires that users “agree and consent to . . . the

Yahoo! Terms of Service and Privacy Policy” during the sign-up pro-

cess.

The Terms of Service indicate that survivors have no rights to

access the e-mail accounts of the deceased; under a section entitled

“No Right of Survivorship and Non-Transferability,” account holders

must agree that the “contents within [their] account[s] terminate upon

. . . death.”

Although the status of e-mail as property has been questioned for

over a decade,

there are as yet few statutes or decisions providing

guidance on the matter.

Indeed, considerable uncertainty surrounds

the ownership and property status of e-mail,

which is a matter of

immediate and significant relevance.

It has been estimated that 548

billion e-mail messages were transmitted in the United States in 2003,

a number that is certain to have grown.

While the vast majority of

6. Susan Llewelyn Leach, Who Gets to See the E-Mail of the Deceased?,

HRIS-

TIAN

. M

ONITOR

, May 2, 2005, at 12, available at http://www.csmonitor.com/

2005/0502/p12s02-usju.html.

7. Derek E. Bambauer, Solving the Inbox Paradox: An Information-Based Policy

Approach to Unsolicited E-Mail Advertising,

10 V

. J.L. & T

ECH

. 5

, ¶ 56 (2005).

8. Yahoo! Registration, https://edit.yahoo.com/config/eval_register (last visited

June 17, 2007).

9. Yahoo! Terms of Service, § 27, http://info.yahoo.com/legal/us/yahoo/utos/utos-

173.html (last visited June 17, 2007).

10. See, e.g., Joe Panepinto, Who Owns Your E-Mail?,

12 T

ELEMATICS

& I

N-

FORMATICS

125

, 127 (1995);

NNE

ELLS

RANSCOMB

, W

WNS

NFORMATION

ROM

RIVACY TO

UBLIC

CCESS

92–105 (1994) (

devoting an entire chapter to ques-

tion “Who Owns Your Electronic Messages?”).

11. One exception is Connecticut, which has statutorily provided for access by ex-

ecutors to the e-mails of decedents. See

ONN

. G

. S

TAT

. A

§ 45a-334a(b) (West

2006).

12. See Cha, supra note 2 (quoting statement of Cindy Cohn, attorney, Electronic

Frontier Foundation, that “[w]e might wish that our Web-based e-mail accounts were

like our books and diaries, but they certainly aren’t for most legal purposes.”); Baldas,

supra note 5 (quoting opinion of Michael Overing, professor of Internet law, Univer-

sity of Southern California, that “people who use e-mail [don’t] realize that an elec-

tronic document is the same as a paper document.”); Should Family Members Have

Access to Your Email Accounts After You’re Gone? Informational Hearing: Email as

Personal Property vs. Private Communication: Hearing Before the Cal. S. Select

Comm. on the Legal, Soc. & Ethical Consequences of Emerging Techs. (2005), avail-

able at http://www.senate.ca.gov/ftp/sen/committee/select/LEGAL_SOCIAL_TEC/_

home/ HearingsAgendas/HearingBackgrounder5-13-05.htm (discussing current uncer-

tainty in law with respect to e-mail ownership and disposition upon death, and identi-

fying unresolved issues).

13. Joshua A.T. Fairfield, Virtual Property, 85

B.U. L. R

1047, 1056 (2005).

14. Daniel B. Garrie & Matthew J. Armstrong, Note, Electronic Discovery and the

Challenge Posed by the Sarbanes-Oxley Act, 9

UCLA J.L. & T

ECH

. ¶ 3 (2005), http://

www.lawtechjournal.com/articles/2005/02_050530_garrie_armstrong.pdf.

World-

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2007] WHO OWNS A DECEDENT’S E-MAILS? 283

these messages may be unremarkable communications or even unso-

licited commercial e-mail (commonly known as “spam”), some e-mail

messages may have significant value. The personal letters of presi-

dents, actors, sports figures, and others may command large sums of

money.

Where messages do not possess economic significance, they

may be time capsules of great personal significance. E-mail can now

be used for the transmission not only of personal messages, but also of

photographs. The intangible value of these communications to those

who have a connection to them may be analogous to the value of yes-

terday’s personal letters and Polaroid pictures. What happens if the

only copy left in existence is maintained by Yahoo!, which denies

access to the would-be heirs and declares that even its copy will be

destroyed within a matter of time, according to its privacy policy and

This Article is divided into six parts: Part II outlines some copy-

right basics and addresses the copyright status of e-mail messages as

well as the current de facto control of e-mail by service providers

independent of copyright implications. Part III suggests bailment law

as an appropriate framework for the analysis of the legal status of e-

mail held by a third party, and also offers comparisons to warehouse

law and the law of safe deposit boxes. Part IV summarizes the current

legal status of e-mail, explains why privacy arguments may be inappo-

site in the case of a decedent’s e-mail, and sets the stage for the rec-

ommendations in Part V. Finally, in Part VI, the Article concludes

with a comparison of e-mail to paper and pen (first class) letters and

their attendant ownership and intellectual property interests. The arti-

cle suggests that e-mail, as a unique kind of property, has not been

given sufficient legal protection as an inheritable probate asset and

wide e-mail traffic has been estimated at 171 billion messages per day, a 27% in-

crease over daily traffic at the end of 2005. Worldwide Daily Email Traffic Climbs to

171 Billion Messages, Spam Rises to 71 Percent, Says Radicati Group, http://

www.tekrati.com/research/News.asp?id=6933 (last visited Mar. 3, 2007).

15. For example, shortly after the birth of the nation Congress purchased the private

letters of George Washington for $25,000, an impressive price at that time. Folsom v.

Marsh, 9 F. Cas. 342, 347 (C.C.D. Mass. 1841) (No. 4901). More recently, a four-

page letter by George Washington was reportedly sold for $2.5 million. Dick Kagan,

Hail to the Chiefs,

& A

NTIQUES

Nov. 2004, at 52, 54. Such “private letters” of

today’s presidents may be comprised largely of e-mail communications. The private

letters of famous authors may similarly possess significant economic value. In the

case of Salinger v. Random House, Inc., the Second Circuit granted a preliminary

injunction to prevent the publication by Random House of a biography of J.D. Salin-

ger which closely paraphrased a number of Salinger’s personal letters. 811 F.2d 90,

93, 100 (2d Cir. 1987). The then-current value of the letters was estimated at over

$500,000. Id. at 99.

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284 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

that legislative action could provide some much needed certainty in

this developing area of law.

II.

OPYRIGHT

AW AND

MAIL

A. Basics of Copyright

1. Subject-Matter

Appropriate subject-matter for copyright protection includes a

vast array of original works of authorship, including literary, musical,

dramatic, and choreographic works, pantomimes, pictorial, graphic, or

sculptural works, and motion pictures or other audiovisual works.

The Digital Performance Right in Sound Recordings Act of 1995

amended the Copyright Act by adding the definition of “digital trans-

mission”: “a transmission in whole or in part in a digital or other non-

analog format.”

An e-mail message is a literary digital transmission

and therefore copyrightable subject-matter.

2. Ideas and Facts Not Copyrightable

A significant limitation on the rights of copyright holders is

found within what is sometimes referred to as the “idea/expression

dichotomy.”

“As with all works of authorship, the copyright owner

secures protection only for the expressive content of the work, not the

ideas or facts contained therein.”

Thus, it would be possible for the

16. 17 U.S.C. § 102(a) (2006).

17. Pub. L. No. 104-39, § 5, 109 Stat. 336, 348 (1995).

18. See, e.g., Crown Awards Inc. v. Trophy Depot, 2003 WL 22208409, at *16

(E.D.N.Y. Sept. 3, 2003) (considering, in context of copyright infringement action,

whether one e-mail advertisement was substantially similar to another e-mail adver-

tisement); Prospect Planet LLC v. Paychecks for Life.com, 2003 WL 751023, at *1

(D.N.D. Jan. 16, 2003) (noting that defendant “copyrights [its] e-mail templates”).

But see Toms v. Pizzo, 4 F. Supp. 2d 178, 185 n.3 (W.D.N.Y. 1998) (declining to

opine whether particular e-mail communications in question would be subject to any

19. See, e.g., T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 114 n.8 (1st

Cir. 2006).

20. Salinger v. Random House, Inc., 811 F.2d 90, 95 (2d Cir. 1987). In Salinger,

the Second Circuit noted that Salinger’s biography was written using letters authored

by him but no longer in his possession. These letters had been obtained from three

university libraries to which they had been donated by their recipients. Id. at 93. The

biography contained around two hundred words that had been quoted from the letters,

and fifty-nine instances of either quoting or close paraphrasing of the letters. Id. In

issuing the injunction to prevent publication of the biography, the court noted that it

was not disputed that Salinger was entitled to a copyright in the letters, as with any

other work of literary authorship. Id. at 92–94. Furthermore, the court reiterated that

“[t]he copyright owner owns the literary property rights, including the right to com-

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2007] WHO OWNS A DECEDENT’S E-MAILS? 285

e-mail recipient, or someone viewing the e-mails possessed by the re-

cipient, to prepare a work incorporating the facts contained in the e-

mail messages without violating copyright laws, as long as the particu-

lar expression of those facts was not copied.

3. Copyright and the Fair Use Doctrine

to reproduce the work, prepare derivative works based upon the origi-

nal work, distribute or rent copies of the work to the public, perform

the work, or display the work.

Unlike the nearly absolute right of

patent holders to exclude others from practicing their inventions, the

exclusive rights provided to copyright holders are subject to the signif-

icant exception of “fair use.”

The fair use exception “affords con-

siderable ‘latitude for scholarship and comment,’”

permitting the

reproduction of copyrighted material for such purposes as criticism,

news reporting, teaching, and research.

In determining whether the

use made of a copyrighted work constitutes fair use, courts must do

more than merely categorize the use as criticism, teaching, etc. In-

stead, they must consider four statutorily prescribed factors: “(1) the

purpose and character of the use . . . ; (2) the nature of the copyrighted

work; (3) the amount and substantiality of the portion used . . . ; and

(4) the effect of the use upon the potential market for . . . the copy-

righted work.”

Under the first factor, a use which is commercial

rather than nonprofit is less likely to be considered fair use.

Con-

versely, under the second factor, the use of a work that is primarily

plain of infringing copying, while the recipient of the letter retains ownership of ‘the

tangible physical property of the letter itself.’” Id. at 94–95 (quoting 1

ELVILLE

IMMER

& D

AVID

IMMER

, N

IMMER ON

OPYRIGHT

§ 5.04 (1986)). Thus, there had

been no copyright violation by the donation of the letters to the university libraries.

21. 17 U.S.C. § 106.

22. 17 U.S.C. § 107; see Katherine Machan, Bending Over Backwards for Copy-

right Protection: Bikram Yoga and the Quest for Federal Copyright Protection of an

Asana Sequence,

12 UCLA E

. L. R

29, 53 (2004) (“Whereas the owner of a

patent obtains the right to exclude others from using the patented invention, copyright

protection does not give the author the right to prevent others from using the copy-

righted work.”).

23. Eldred v. Ashcroft, 537 U.S. 186, 220 (2003) (quoting Harper & Row Publish-

ers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)).

24. 17 U.S.C. § 107.

25. Id. For an early formulation of the factors now codified in the fair use doctrine,

see Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4901) (“[W]e

must often, in deciding questions of this sort, look to the nature and objects of the

selections made, the quantity and value of the materials used, and the degree in which

the use may prejudice the sale, or diminish the profits, or supersede the objects, of the

original work.”).

26. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001).

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286 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

fact-based (as opposed to creative) would favor fair use.

The third

factor suggests that the smaller the portion of the copyrighted material

used, the greater the likelihood that the use will be fair.

Finally, the

fourth factor indicates that where the use increases or does not affect

the market for the copyrighted work, the use is more likely to be con-

sidered fair.

These four factors form the basis of a flexible framework for the

analysis of potential copyright violations. The United States Supreme

Court has indicated that the list is “not intended to be exclusive.”

Moreover, no one factor is dispositive.

4. Transfer of Copyright

In order to effectuate a transfer of copyright ownership (for ex-

ample, from the e-mail account holder to the service provider) there

must be a writing evincing intent to transfer the copyright owner-

ship.

Importantly, this writing requirement does not apply when the

transfer is made “by operation of law,” such as by probate transfer.

Federal law provides that the intellectual property component of copy-

rightable works may also be passed to heirs, either “by will or . . . by

27. See id. at 1016.

28. See id.

29. Note that reproducing copyrighted material can in some cases increase demand

for the copyrighted work. For example, news reporting that uses copyrighted material

from a feature film may increase the demand for the film, even if the comments are

negative or critical. See generally David Kirkpatrick, Bad Publicity? What’s That?,

ORTUNE

, June 9, 1997, at 136 (“Sometimes a bad brand name is better than no brand

name at all.”); The Bad Publicity Factor,

SYCHOL

. T

ODAY

, Mar./Apr. 1995, at 22

(“[E]ven bad publicity is better than no publicity at all . . . .”).

30. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 476 (1984).

31. See id.

32. 17 U.S.C. § 204(a) (2006); 3

ELVILLE

B. N

IMMER

& D

AVID

IMMER

, N

IMMER

OPYRIGHT

§ 10.03[A][1]–[2] (2006). Furthermore, it is generally “unlikely that

the writer of a letter will intend to give his letter’s recipient a license to publish or

otherwise exploit the letter’s contents.” 1

AUL

OLDSTEIN

OLDSTEIN ON

OPY-

RIGHT

§ 4.2.1.3 (2d ed. Supp. 2005). “Unless it is clear from the letter or other cir-

cumstances that the writer intended to waive his rights in the letter’s content, or to

convey these rights to the recipient of the letter, the recipient will own only the paper

and ink with which the letter was written and will have neither exclusive nor co-

ownership rights in the content of the letter.” Id.

33. 3

IMMER

& N

IMMER

supra note 32, § 10.03[A][6]. Also excepted from the

writing requirement is the vesting of copyright in employers, although technically this

is not a “transfer” of copyright ownership, since the copyright initially vests in the

employer. Id.; see 17 U.S.C. § 201(b) (“In the case of a work made for hire, the

employer . . . is considered the author for purposes of this title, and, unless the parties

have expressly agreed otherwise [in writing], owns all of the rights comprised in the

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2007] WHO OWNS A DECEDENT’S E-MAILS? 287

the applicable laws of intestate succession.”

When the author of a

letter dies without a testamentary provision for the disposition of the

itself remains the property of the recipient.

In the case of In re Mc-

Cormick’s Estate, a military serviceman, who was later killed in ac-

tion, sent a letter to his minor children.

The economic value of the

letter became apparent when a motion picture company and a music

publishing company contracted for the rights to use the letter.

The

court held that proceeds from these contracts (presumably based on

but that the proceeds from the sale of the physical letters, should that

occur in the future, would belong to the children alone.

Thus, the

property right in the copies was vested in the letter’s recipients (the

children), while the property right in the copyright remained with the

sender, and then passed on according to his will (if he had one) or the

laws of intestacy.

B. “You’ve Got [Copyrighted] Mail!”

“Copyright protection subsists. . . in original works of authorship

fixed in any tangible medium of expression, now known or later de-

veloped. . . .”

Just as senders of private pen-and-paper letters are

unlikely to register the letter with the Copyright Office prior to drop-

ping off the letter at the post office, senders of e-mail messages are

unlikely to register their messages with the Copyright Office prior to

hitting “send.” Nevertheless, registration is not a requirement for cop-

yright protection: the copyright “subsists” in the work at the moment

of creation.

34. 17 U.S.C. § 201(d)(1).

35. See In re McCormick’s Estate, 80 Pa. D. & C. 413 (Orphan’s Ct. 1952); see

also Grigsby v. Breckenridge, 65 Ky. (2 Bush) 480, 488 (1867).

36. In re McCormick’s Estate, 80 Pa. D. & C. at 413–14.

37. Id. at 414.

38. Id. at 417.

39. 17 U.S.C. § 102(a).

40. 17 U.S.C. § 102(a); see also Data Gen. Corp. v. Grumman Sys. Support Corp.,

36 F.3d 1147, 1160 (1st Cir. 1994) (“[A]lthough copyright protection attaches the day

original expression is fixed in a tangible medium . . . and thus an infringer may be

liable for infringement from that day forward . . . registration of the copyright is a

prerequisite to suit under the Copyright Act . . . .”); Olan Mills, Inc. v. Linn Photo

Co., 23 F.3d 1345, 1349 (8th Cir. 1994) (“While registration is required under section

411 of the Copyright Act in order to bring a suit for infringement, infringement itself

is not conditioned upon registration of the copyright.”). Further benefits of federal

damages, 17 U.S.C. § 412, and a presumption of the validity of the copyright, 17

U.S.C. § 410(c).

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288 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

Is an e-mail message an “original work of authorship”? It may

be true that letter writing is a lost art,

and e-mail messages tend to be

even less formal and further removed from the average person’s con-

ception of “literary work” than are private letters. Nevertheless, even

if few private letters—and even fewer e-mail messages—are “literary”

in the colloquial sense, neither literary merit nor qualitative value are

requirements for copyright.

Courts have consistently held that pri-

vate letters can be “original work[s] of authorship” and thus are copy-

rightable.

Similarly, even a hastily-drafted e-mail sent to a

colleague regarding the merits (or lack thereof) of the new employee

espresso machine would almost certainly be considered an “original

work of authorship.”

One might ask whether e-mail messages are “fixed in a tangible

medium of expression” within the meaning of the Copyright Act.

Again, the answer is yes. The Copyright Act provides that “[a] work

is ‘fixed’ in a tangible medium of expression when its embodiment in

a copy . . . is sufficiently permanent or stable to permit it to be per-

ceived, reproduced, or otherwise communicated for a period of more

than transitory duration.”

E-mail messages stored on an e-mail ser-

vice provider’s server or other computer hard drive clearly meet the

fixation requirement. These electronic messages can be stored for

years, a far longer period than “transitory duration.”

Moreover, the

41. See, e.g., Helen Berman, The Lost Art of Letter Writing,

OLIO

AGAZINE

FOR

AGAZINE

ANAGEMENT

, May 15, 1994, at 41; Amy Wu, Stop The Clock: My

Generation’s Obsession with Saving Time Means Losing out in the Long Run,

EWS-

EEK

, Jan. 22, 1996, at 14 (lamenting that “[t]he art of letter writing is long gone.”).

42.

H.R. R

. N

94-1476, at 54 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659,

5667 (“The term ‘literary works’ does not connote any criterion of literary merit or

qualitative value: it includes catalogs, directories, and similar factual, reference, or

instructional works and compilations of data.”); Wright v. Warner Books, Inc., 953

F.2d 731, 735 (2d Cir. 1991) (“Letters, like other literary works, are entitled to copy-

right protection . . . .”).

43. See, e.g., Salinger v. Random House, Inc., 811 F.2d 90, 94 (2d Cir. 1987) (“The

author of letters is entitled to a copyright in the letters, as with any other work of

literary authorship.”); Grigsby v. Breckinridge, 65 Ky. (2 Bush) 480, 484 (1867) (con-

cluding that private letters are entitled to same protection as literary manuscripts under

common law); see generally 1

OLDSTEIN

, supra note 32, § 4.2.1.3 (“Courts univer-

sally hold that letters are copyrightable and that the author of a letter has exclusive

rights in it . . . .”).

44. Even computer software, which may seem far less “literary” even than e-mail,

is copyrightable as a literary work. Higher Gear Group, Inc. v. Rockenbach Chevrolet

Sales, Inc., 223 F. Supp. 2d 953, 957 (N.D. Ill. 2002) (“It is well established that

computer software is . . . within the subject matter of copyright.”).

45. 17 U.S.C. § 101.

46. Even the loading of software into much more transitory Random Access Mem-

ory (RAM) has been held to meet the fixation requirement. MAI Sys. Corp. v. Peak

Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that software that is

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2007] WHO OWNS A DECEDENT’S E-MAILS? 289

language of the Copyright Act itself is designed to accommodate ad-

vances in technology: tangible media of expression include those that

are “now known or later developed.”

Like private letters written on

a piece of paper, e-mails stored on a computer hard drive are “fixed”

for the purposes of the Copyright Act.

In short, when it comes to copyright analysis, the quotation from

People v. Lipsitz provided at the beginning of this Article is accurate:

“E-mail is ‘comparable in principle to sending a first class letter

. . . .’”

Given that e-mail is copyrightable, does it necessarily follow that

transmission of e-mail to a third party is necessarily a violation of

rights to forward an e-mail to a third party or send a reply in which the

original message is reproduced? The simple act of forwarding an e-

mail could constitute a prima facie case of infringement as follows:

A copyright subsists in the e-mail upon its creation. When the e-mail

is forwarded to and received by a third party, a copy is created on the

loaded into RAM is sufficiently “fixed” for purposes of copyright statutes); see also

U.S. C

OPYRIGHT

FFICE

, DMCA S

ECTION

104 R

EPORT

xxii (2001), available at http://

www.copyright.gov/reports/studies/dmca/dmca_study.html (“[T]he making of tempo-

rary copies of a work in RAM implicates the reproduction right so long as the repro-

duction persists long enough to be perceived, copied, or communicated. Every court

that has addressed the issue of reproductions in RAM has expressly or impliedly

found such reproductions to be copies within the scope of the reproduction right.”).

But see Ira L. Brandriss, Writing in Frost on a Window Pane: E-Mail and Chatting on

RAM and Copyright Fixation, 43

J. C

OPYRIGHT

’

U.S.A.

237, 277 (1996) (argu-

ing that “[t]he . . . position that e-mail messages in RAM are sufficiently fixed to be

worthy of copyright protection under current law is highly questionable.”).

47. 17 U.S.C. § 102(a). The legislative history of the Copyright Amendments Act

of 1990 demonstrates a clear intention that digital media support fixation, stating inter

alia that “a work of architecture may be embodied . . . in ‘any tangible medium of

expression,’ such as a blueprint or computer disk.”

H.R. R

. N

101-735, at 19

(1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6950.

48. 663 N.Y.S.2d 468, 473 (N.Y. Sup. Ct. 1997) (quoting ACLU v. Reno, 929 F.

Supp. 824, 834 (E.D. Pa. 1996)).

49. See, e.g., Eric Goldman, A Road to No Warez: The No Electronic Theft Act and

Criminal Copyright Infringement, 82

. L. R

369, 415, 428 (2003) (noting that e-

mail messages forwarded to friends could constitute criminal copyright infringement

under No Electronic Theft Act); Ruth L. Okediji, Trading Posts in Cyberspace: Infor-

mation Markets and the Construction of Proprietary Rights, 44

B.C. L. R

545, 558

n.56 (2003) (“[R]outine practices such as . . . forwarding email . . . are, strictu sensu,

Cyberspace: Why Copyright Law Could Be Unimportant on the Internet, 12

ERKE-

LEY

ECH

. L.J. 15

, 36–37 (1997) (describing e-mail forwarding to mail list as “micro-

infringement[ ]” of copyright law).

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290 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

recipient’s computer. Creation of such a copy is one of the acts to

which the copyright holder has an exclusive right.

However, the forwarder may be able to claim that the act of for-

warding the e-mail does not constitute an act of infringement under

the doctrine of fair use.

When claiming protection under the fair use

doctrine, the burden of proof is on the defendant, who must establish

that her use was consistent with the balancing test embodied in Sec-

tion 107.

Because the forwarding of e-mail is generally not for prof-

itable gain, if the e-mail is more factual than creative, and the value of

the e-mail is not diminished as a result of its reproduction, the defense

of fair use may very well apply. Conversely, if the author’s work in

the e-mail is creative and has potential economic value that is dimin-

ished by its unauthorized reproduction, the defendant may not have

the benefit of the fair use defense.

Consider the instance where a colleague receives a copyrighted e-

mail and forwards the entire document to another with accompanying

commentary that “adds value” to the received e-mail. This could be a

“transformative use” or “productive use” of the e-mail and the basis of

a claim of fair use.

The average quotidian e-mail message may have

no market value at all. Therefore, in many cases the forwarding of the

e-mail could not negatively affect the potential market for the work

(since there is no market to begin with). Provided that the use of the

e-mail received is not-for-profit and is considered “transformative,”

that the e-mail exhibits little creativity, and that the economic value of

the original e-mail is not diminished by the comments in the for-

50. 17 U.S.C. § 106. Miriam Yakobson, Copyright Liability of Online Service

Providers After the Adoption of the E.C. Electronic Commerce Directive: A Compari-

son to U.S. Law, 11

. L.R.

144, 146 (2000) (“A copy of the work is . . . made

every time one views a website . . . or . . . forwards email.”).

51. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (“[F]air use is

an affirmative defense . . . .”); but see Bateman v. Mnemonics, Inc., 79 F.3d 1532,

1542 n.22 (11th Cir. 1995) (“Originally, as a judicial doctrine without any statutory

basis, fair use was an infringement that was excused—this is presumably why it was

treated as a defense. As a statutory doctrine, however, fair use is not an infringe-

ment . . . . [I]t is logical to view fair use as a right.”).

52. 17 U.S.C. § 107 (“[T]he fair use of a copyrighted work, including such use by

reproduction in copies . . . for purposes such as criticism, comment, news reporting,

teaching . . ., scholarship, or research, is not an infringement of copyright.”); Chi. Bd.

of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003) (“The burden of proof

is on the copier because fair use is an affirmative defense . . . .”).

53. See Pierre N. Leval, Toward a Fair Use Standard, 103

ARV

. L. R

1105,

1111 (1990);

ARSHALL

EAFFER

, U

NDERSTANDING

OPYRIGHT

472 & n.16 (4th

ed. 2005).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 291

warder’s e-mail, the use should be considered fair notwithstanding the

fact that the entire e-mail message was reproduced.

On the other hand, where an e-mail message has potential market

value, the forwarding of that e-mail could affect its value.

Imagine,

for example, an author who composes an original, unpublished short

story as an e-mail message and forwards it to a colleague for com-

ment. Some years later, the author is in negotiations to license the

story to a publisher. Obviously, the market value of the license is

dependent, at least in part, on the newness of the story: if the original

recipient of the e-mail message had forwarded the e-mail containing

the story to a large number of recipients, the market value of the story

might be significantly diminished. If the original recipient had redis-

tributed the e-mail as part of a commercial enterprise, perhaps as a

part of a “Short Story of the Week Mailing List,” the claim of fair use

would have much less merit.

C. E-Mail Service Providers Enter the Game: The Effect of

Contractual Provisions on E-Mail Ownership

The default ownership rules provided by statute or common law

may in some cases be modified via private contract. In the context of

e-mail ownership, these contractual provisions are typically contained

within an e-mail service provider’s terms of service agreement and

may potentially modify ownership both of the copyright in the e-mail

messages and of the electronic copies of the messages stored by the

service provider. Provisions addressing the disposition of an e-mail

account holder’s account contents upon termination of service are par-

ticularly relevant in the case of death, where a service provider’s ac-

count inactivity policy may be triggered, resulting in account

termination and subsequent content deletion. Recognizing the signifi-

cance of account termination to the rights of account holders, states

54. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (hold-

ing that manifestly commercial nature of defendant’s use was not dispositive of fair

use claim). The Acuff-Rose Court noted that “the more transformative the new work,

the less will be the significance of other factors, like commercialism, that may weigh

against a finding of fair use.” Id. at 579.

55. Of course, forwarding an e-mail that contains the copyrighted article of a third

party (either as an attachment or in the body of the e-mail itself) could reduce demand

for the article. Bev Butula, Don’t Be a Copycat: Reproducing Copyrighted Works,

. L

Apr. 2005, at 26, 30 (“[Copying an article into an e-mail message and

forwarding it to someone else] may not cause a copyright owner too much concern.

But if that email subsequently gets forwarded numerous times, the copyrighted article

then has been reproduced several times. This widespread distribution without the

owner’s permission may be an infringement.”).

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292 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

have begun to promulgate legislation clarifying these rights as be-

tween account holders (or their heirs) and e-mail service providers.

1. Modification of Copyright

Current copyright law provides protection for the life of the au-

thor plus seventy years.

If the e-mail of a given individual is valua-

ble, such lengthy copyright protection could conceivably provide a

stream of royalty income for multiple generations of the copyright

holder’s heirs. This presupposes, of course, that the copyright in the

e-mail is a probate asset inheritable upon death.

That proposition is

uncertain, especially given the contractual provisions promulgated by

certain internet service providers.

For example, in a paragraph enti-

tled “No Right of Survivorship and Non-Transferability,” the Yahoo!

contents within your [e-mail] account terminate upon your death.”

This provision makes no distinction between the copy of the e-

mail messages and the copyright in the work itself. It is therefore

somewhat unclear whether the legal status of the copyright is affected

when the rights to the account contents are terminated. Normally, a

struction of a copy lawfully obtained.

Conversely, the destruction of

the copy does not destroy the copyright in the work.

56. 17 U.S.C. § 302(a).

57. See infra Part III.D.

58. Contract provisions can sometimes trump the default copyright laws. See, e.g.,

17 U.S.C. § 108(f)(4) (providing that section 108’s allowances for certain library and

archival uses do not supersede contractual obligations library undertakes in obtaining

copy of copyrighted work); Maureen A. O’Rourke, Drawing the Boundary Between

UKE

L.J.

479, 479–80 (1995) (“The Act grants the copyright owner certain exclusive

rights. Parties negotiate over the allocation of those rights, and the result of that nego-

tiation is reflected in their contract.”). However, the ability to modify default copy-

right rules is not necessarily without limits. See id. at 479. (“Courts have not clearly

stated whether the [Copyright] Act [of 1976] preempts contracts between authors and

users of copyrighted works that purport to vary the rights and obligations set forth in

the Act.”).

59. Yahoo! Terms of Service, supra note 9, § 27.

60. 17 U.S.C. § 109(a); Melville B. Nimmer, National Security Secrets v. Free

Speech: The Issues Left Undecided in the Ellsberg Case, 26

TAN

. L. R

311, 319

n.39 (“[I]f [the owner of a copy of a book] destroys [that] copy, the copyright owner

may not assert ‘conversion’ of the copyright owner’s property, since that which was

destroyed belonged to the book purchaser.”).

61. Imagine the legal ramifications if this were not the case: one would be able to

terminate a copyright holder’s rights by, for example, burning a book. If an entire

library burned downed, tens of thousands of works might lose their copyrights, an

absurd result.

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2007] WHO OWNS A DECEDENT’S E-MAILS? 293

E-mail service providers may argue that the deceased has con-

tractually limited her rights either in the copy, or in the copyright, or

in both by agreeing to the terms of service.

Nevertheless, it seems

unlikely that either party would intend or expect a copyright transfer

from the account holder to the e-mail service provider merely from the

ownership of the intellectual property component of account content.

Although no particular language is required to effect transfer of copy-

right ownership,

the case law suggests that in order to effect a trans-

fer of copyright, the writing required by 17 U.S.C. § 204(a) must do

more than make a general statement that “rights and interests” in the

work will be transferred.

It is of course possible for the terms of use

drafted by e-mail service providers to include language clearly indicat-

ing the intent to transfer copyright ownership. Absent such language,

however, a court may be reluctant to read into a contract of adhesion

the intent to transfer intellectual property rights where such intent is

not clearly expressed.

2. Ownership of the Copy Itself

In contrast, a terms of service agreement providing that “any

rights to . . . contents within your [e-mail] account terminate upon

your death”

could fairly be read to terminate rights to the copy itself,

as distinct from rights to the copyright.

Parties are generally free to

contract to whatever terms they wish, as long as those terms are not

62. See Jonathan Bick, Inheriting Deceased’s E-Mail, N.J. L.J., Mar. 7, 2005, at 29,

available at http://www.bicklaw.com/Publications/InheritingDeceasedsE-mail.htm.

An interesting issue arises in the case of minors with e-mail accounts, against whom

contracts may not be enforceable due to lack of contractual capacity. See, e.g.,

. C

ODE

§ 6710 (

West 2007) (“[A] contract of a minor may be disaffirmed by the

minor before majority . . . or, in case of the minor’s death . . . by the minor’s

heirs . . . .”);

. C

ODE

. A

. § 13-3-20

(a)

(

West 2007) (“Generally the contract of a

minor is voidable.”).

63. See Gmail Terms of Use, § 5, http://mail.google.com/mail/help/terms_of_

use.html (last visited July 4, 2007).

64. E.g., Lyrick Studios, Inc. v. Big Idea Prods., Inc., 420 F.3d 388, 392 (5th Cir.

2005); Armento v. Laser Image, Inc., 950 F. Supp. 719, 733 (W.D.N.C. 1996) (ruling

that the word “copyright” does not need to be included in written agreement in order

to effect copyright transfer), aff’d per curiam, 134 F.3d 362 (4th Cir. 1998).

65. See, e.g., Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 560 (2nd Cir. 1995)

(holding that a legend agreement stating, “‘payee acknowledges payment in full for

the assignment to Playboy Enterprises, Inc. of all right, title and interest in and to the

following items: [a description of a painting followed]’” was insufficient to transfer

66. Yahoo! Terms of Service, supra note 9, § 27.

67. See infra Part II.D.

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294 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

unlawful or contrary to public policy.

One state appears to believe

that it is in the public interest for heirs to have access to the e-mail

accounts of the deceased. Breaking new ground, Connecticut recently

passed legislation commanding electronic mail service providers to

“provide, to the executor or administrator of the estate of a deceased

person. . . access to or copies of the contents of the electronic mail

account of such deceased person,” provided certain documentation is

presented.

This is a sensible approach. It would seem to be a small burden

to require an e-mail service provider to retain the contents of the de-

ceased’s account for a specified period of time, during which time

heirs of the deceased would have the opportunity to present documen-

tation in order to obtain access to the account. Transmission of infor-

mation will allow heirs to effectively manage the affairs of the

deceased (such as paying bills received via e-mail) and provide writ-

ten records of significant sentimental value. Moreover, providing for

the inheritability of e-mail messages (at least incoming messages) is

consistent with the inheritability of private letters, which may pass to

heirs through the normal probate process.

Some e-mail service providers have voluntarily implemented pol-

icies to facilitate the transmission of e-mail account content to heirs.

Despite their privacy policies and contractual limits on account holder

ownership of account content,

Hotmail, Gmail, and America Online

68. E.g., Willard Packing Co. v. Javier, 899 A.2d 940, 947 (Md. Ct. Spec. App.

2006) (“Under the principles of freedom of contract, parties have a broad right to

construct the terms of contracts they enter into as they wish, providing the contract is

neither illegal nor contrary to public policy.”); State v. Pleva, 456 N.W.2d 359, 362

(Wis. 1990) (“This court will protect parties’ freedom to contract as long as the terms

of the contract are not contrary to public policy.”).

69.

ONN

. G

. S

TAT

. A

§ 45a-334a(b) (West Supp. 2006).

70. See infra note 163 and accompanying text.

71. Those who register for a Hotmail account must acknowledge that “Microsoft

may terminate this Agreement . . . at any time . . . . Upon such termination . . . your

right to use the MSN Web Sites will immediately cease. UPON SUCH TERMINA-

TION . . . ANY INFORMATION YOU HAVE STORED ON THE MSN WEB

SITES MAY NOT BE RETRIEVED LATER.”

MSN W

EBSITE

ERMS OF

SE AND

OTICES

§ 12, http://privacy2.msn.com/tou/default.aspx (last visited July 4, 2007).

The Gmail terms of use similarly imply that account holders do not possess any prop-

erty interest in their accounts. Gmail Terms of Use, supra note 63, § 11, http://

mail.google.com/mail/help/terms_of_use.html (last visited Mar. 6, 2007) (“Google

may at any time and for any reason . . . terminate your account. In the event of

termination, your account will be disabled and you may not be granted access to your

account or any files or other content contained in your account although residual cop-

ies of information may remain in our system.”). However, Google explicitly dis-

claims ownership of any intellectual property rights arising from its account holders’

communications. Id. at § 5 (“Google[‘s intellectual property] Rights do not in-

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2007] WHO OWNS A DECEDENT’S E-MAILS? 295

allow heirs to obtain access to decedent’s e-mail account content upon

the presentation of certain documentation.

3. Account Termination

In the absence of legislation, e-mail service providers have the upper

hand in disputes with account holders or the heirs of deceased account

holders. For example, in a highly publicized Canadian case, an e-mail

service provider, Inter.net, suspended e-mail access by an account

holder, Nancy Carter, due to a billing dispute. However, Inter.net

failed to notify either those sending messages to the account or the

account holder herself that the account was still receiving messages.

One of the messages not timely received by the account holder was

allegedly a job offer, which she was unable to accept because she

could not access her account to read the message.

Although the par-

ties settled prior to a Canadian Federal Court decision,

the Canadian

Privacy Commissioner who considered the case issued a statement ex-

pressing concern at the e-mail service provider’s actions. He noted

that “[t]he practice [of allowing electronic messages to be delivered

clude . . . the content of communications appearing on the Service. . . . Google does

not claim any ownership in any of the content . . . that you upload, transmit or store in

your Gmail account.”). See also Evan Hansen, Who Owns Your Email?,

CNET

EWS

, Oct. 29, 2002, http://news.com.com/2100-1023-963631.html?tag=fd_lede2_

hed (“AOL members who cancel their accounts voluntarily lose any accumulated e-

mail unless they reactivate their accounts before the files are purged”).

72. Cha, supra note 2; Who Owns Your E-Mails?,

BBC N

EWS

, Jan. 11, 2005, http://

news.bbc.co.uk/2/hi/uk_news/magazine/4164669.stm. These service providers gener-

ally require some proof of relationship before the account is transferred. Hotmail, for

example, requires heirs to present (1) documents proving legal relationship to the

deceased, (2) a photocopy of the driver license and death certificate of the deceased,

and (3) a document that answers six identification questions such as date of birth of

the deceased, “for verification purposes.” E-mail from Microsoft Contact U.S. to

Jonathan J. Darrow (Feb. 13, 2006) (on file with The New York University Journal of

Legislation and Public Policy). Upon verification of account information, Microsoft

will send via certified mail a compact disk containing “available account informa-

tion.” Id. AOL employs full-time staff to handle next-of-kin requests, and similarly

requires verifying documentation. HowToWeb.com, What Happens to Your Email

When You’re Dead?, http://www.howtoweb.com/cgi-bin/insider.pl?zone=361051

(last visited July 4, 2007).

73. Tyler Hamilton, Woman Wins Fight for Hostage E-mail,

ORONTO

TAR

, Feb.

28, 2002, at E4. A spokesperson for the ISP responded that “denying access [to an e-

mail account] until payment is received is something ‘all the other ISPs do.’” Id.

74. Craig McTaggart, A Layered Approach to Internet Legal Analysis, 48

ILL

L.J.

571, 612–13 (2003).

75. E-mail from Nancy Carter to Jonathan J. Darrow (Mar. 19, 2006, 20:43:01

EST) (on file with The New York University Journal of Legislation and Public

Policy).

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296 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

without notice to either sender or recipient] falsely leads the sender to

believe that the message has gone through unimpeded.”

Certainly e-mail service providers have a legitimate interest in

collecting accrued fees from users, but a remedy of the type employed

by Inter.net seems far out of proportion to the type of injury that

would normally be suffered by the e-mail service provider (unpaid

account fees). Denying account holder access creates uncertainty for

senders and recipients alike,

and potentially upsets business and per-

sonal communications on a grand scale. Furthermore, there may be

less severe alternatives available to e-mail service providers, ranging

from requiring prepayment by account holders to blocking an account

holder’s ability to send (but not to receive) e-mail messages.

Although the Nancy Carter case did not involve the restriction of

access to a decedent’s e-mail account, the principles are analogous.

Denying heirs access to the deceased account holder’s e-mail account

creates uncertainty both for those sending e-mail to that account and

for heirs who may be unable to access important communications.

Furthermore, less disruptive alternatives may be available, such as

providing a time period during which heirs can access a decedent’s

accounts upon the presentation of a death certificate and other

information.

4. Regulation of Account Termination

California has recently attempted to regulate e-mail account ter-

mination by mandating a thirty-day notice period prior to the termina-

tion of e-mail service.

This rule reasonably balances the rights of

account holders and those of e-mail service providers. For account

holders, the legislation guarantees a minimum notice period and pre-

76.

FFICE OF THE

RIVACY

OMMISSIONER OF

ANADA

, C

OMMISSIONER

’

IND-

INGS

, PIPED A

ASE

UMMARY

. 66, I

NTERNET

ERVICE

ROVIDER

CCUSED OF

ITHHOLDING

E-M

AILS

ENT TO

USPENDED

CCOUNT

(2003), http://www.privcom.

gc.ca/cf-dc/2002/cf-dc_020828_e.asp.

77. See Hamilton, supra note 73 (noting disruption of sender’s “reasonable expec-

tation that their e-mail is either delivered or returned,” given that sender “cannot be

expected to know the terms of service” of the recipient).

78.

. B

. & P

ROF

. C

ODE

§ 17538.35(a) (West Supp. 2007) (“Unless otherwise

permitted by law or contract, any provider of electronic mail service shall provide

each customer with notice at least 30 days before permanently terminating the cus-

tomer’s electronic mail address.”). A corollary issue is presented in the case of the

bankruptcy of the e-mail service provider, where it may be desirable to require the

bankrupt company to provide notice and a certain period of time during which ac-

count holders can download e-mail accounts to their computers in order to avoid loss

of the account’s contents. See generally 8A

. J

Bailments §§ 201–03 (1997)

(discussing termination of bailments).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 297

vents service providers from shortening this period by contract.

For

e-mail service providers, the legislation leaves open the possibility

that service may be terminated with less than thirty days notice if the

account holder has given “cause,” such as engaging in conduct that

violates the service provider’s acceptable use policy.

While the California statute is a good first step, it does not re-

solve all or even most of the uncertainty regarding the legal status of

e-mail. For example, it is not clear that the provision would assist

someone in the position of Nancy Carter, given that the circumstances

underlying the billing dispute may have constituted a violation of the

service agreement. Nor does it clarify the rights of heirs who seek to

obtain access to a deceased’s e-mail account. Although the California

law may give heirs a thirty-day window during which to take action,

the e-mail service provider is in de facto control of the account and

has the ability to delete the account contents—at least after the thirty

day notice period—according to the terms of the service agreement.

Moreover, because notification will likely be given to account holders

via e-mail, such notice will be ineffective as to heirs who do not al-

ready have access to the account.

79.

. B

. & P

ROF

. C

ODE

§ 17538.35(b) (“No contract for electronic mail ser-

vice may permit termination of service without cause with less than a 30–day

notice.”).

80. Id. Equally commendable, the foresighted drafters of this provision contem-

plated that the provision may eventually be superseded by federal legislation and pro-

vides that “[t]his section shall become inoperative on the date that a federal law or

regulation is enacted that regulates notice requirements in the event of termination of

electronic mail service.” Id. § 17538.35(f).

81. Id. § 17538.35(b). Note also that state laws requiring the transfer of e-mail

present jurisdictional concerns. If the laws apply based on the domicile of the dece-

dent—as is the case with the Connecticut statute referred to supra, note 69,

ONN

. S

TAT

. A

§ 45a-334a(b) (West Supp. 2006)—e-mail service providers who

have clients in multiple states could be subject to myriad different systems of compli-

ance. Enforcement against foreign e-mail service providers may also prove difficult,

and compliance of foreign e-mail service providers may even violate the laws (e.g.,

privacy laws) of the foreign country. Jurisdiction issues relevant to e-mails are espe-

cially difficult to resolve because they are often accompanied by contract provisions

found in the terms of use or the privacy policy of the e-mail service provider. A court

could rule the contract provisions in the terms of use prohibiting distribution of the

subscriber’s e-mails to another violates the public policy of the state that has enacted

legislation allowing access to the deceased e-mail author’s account.

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298 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

D. “Two Sticks in the Bundle of Property Rights”: Ownership of

Copies and Copyrights as Discrete Rights

The prevailing view regarding ownership of property is that own-

ership is not a discrete right, but rather a “bundle of rights.”

For

example, “ownership” of a piece of land may include the distinct

rights to occupy the land, to build a permanent structure on the land,

and to exclude others from trespassing on the land. The aggregate

concept of ownership is the “bundle,” whereas the discrete rights of

which it is comprised are the “sticks.” It is possible to disaggregate

the bundle such that one or more of the rights which could be included

in the concept of ownership are not. For example, with respect to the

example just provided, zoning or environmental laws may prohibit

landowners from building on the land, and contractual or statutory

easements may exist such that the owner cannot exclude the easement

holder from exercising her limited right to use the land.

The ownership of e-mail messages can be conceived of in the

same way. For the purposes of this analysis, the two most important

“sticks” are the right to a particular copy of the e-mail, and the right to

a copyright in the e-mail.

owning the copyright in the contents of an e-mail and owning a copy

of the e-mail itself.

This distinction can easily be understood by

considering the purchase of a copy of a book: the purchaser acquires

rights to the copy of the book, but does not acquire rights to the copy-

right subsisting in the book’s contents. Although the purchaser may

82. See, e.g., Charles E. Steward Mach. Co. v. Davis, 301 U.S. 548, 581 (1937)

(“Indeed, ownership itself, as we had occasion to point out the other day, is only a

bundle of rights and privileges invested with a single name.” (citing Heneford v. Silas

Mason Co., 300 U.S. 577 (1937))); J.E. Penner, The “Bundle of Rights” Picture of

Property,

43 UCLA L. R

. 711, 712

(1996) (“The currently prevailing understand-

ing of property in what might be called mainstream Anglo-American legal philosophy

is that property is best understood as a ‘bundle of rights.’”).

83. In reality each of these “sticks” is itself comprised of several smaller sticks.

Section 106 of the Copyright Act specifically provides the author the distinct rights

(“sticks”) to reproduce the work, display the work, etc. See supra Part II.A. Simi-

larly, the right to the copy of the e-mail may include the constituent rights to possess

the e-mail, to exclude others from possessing the e-mail, to re-transmit the e-mail, etc.

84. See 17 U.S.C. § 202 (2006) (“Ownership of a copyright, or of any of the exclu-

sive rights under a copyright, is distinct from ownership of any material object in

which the work is embodied. Transfer of ownership of any material object, including

the copy . . . in which the work is first fixed, does not of itself convey any rights in the

copyrighted work embodied in the object; nor, in the absence of an agreement, does

transfer of ownership of a copyright or of any exclusive rights under a copyright

convey property rights in any material object.”).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 299

resell the book,

she cannot make or sell additional copies, rent or

lease the work, or perform any of the other acts to which the copyright

holder has an exclusive right under § 106.

1. Inheriting E-Mail, Copy In Possession of Heirs

In light of the distinction between ownership of a copy of an e-

mail and ownership of the underlying copyright in the e-mail’s con-

tents, if the deceased leaves behind a computer hard drive containing

copies of e-mail messages, these messages would pass to the next of

kin just as would a shoebox full of old letters.

Heirs might similarly

inherit previously printed copies of e-mail messages. However, the

to the heirs either via a will or by the applicable laws of intestate

succession.

2. Compelling Third-Party Possessor to Return Copy to

Recipient’s Heirs

What good is the author’s retained copyright in her e-mail

messages if the only copy in existence is no longer in her possession?

Can she compel the recipient to return the e-mail to her? In Grigsby v.

Breckenridge, Breckenridge, the surviving husband of Virginia Hart,

sought the return of letters he had written to Hart, but that were given

to Grigsby by Hart on Hart’s deathbed.

The court stated that the

recipient has the right “to keep the letter or to destroy it” though the

author retains the right to publish the letter if it still exists.

Once

letters have been sent, the author cannot compel the recipient to return

them,

except possibly on a temporary basis for the purpose of publi-

85. Pursuant to the first sale doctrine, a copyright holder may not prevent a person

in lawful possession of a copy of that work from selling, renting, lending, or otherwise

disposing of that copy of the work. Hotaling v. Church of Jesus Christ of Latter-Day

Saints, 118 F.3d 199, 203 (4th Cir. 1997), construing 17 U.S.C. § 109.

86. See supra note 21 and accompanying text.

87. See Bick, supra note 62.

88. See 17 U.S.C. § 201(d)(1); supra Part II.A.4.

89. Grigsby v. Breckinridge, 65 Ky. (2 Bush) 480, 482–83 (1867).

90. Id. at 486.

91. Id. at 484 (“By sending them, the authors parted with their right to the posses-

sion, control, or reclamation of them without her consent, and gave her the exclusive

right to read and keep them for their enduring memories and sentiments.”). Id. at 489

(“‘There is no right to possession, present or future, in the writer. The only right to be

enforced against the holder is a right to prevent publication, not to require the manu-

script from the holder in order to a publication by himself.’ ”) (emphasis added) (quot-

ing Joel Parker, 1

. L. R

450, 458 (1853)).

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300 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

cation.

The author retains the “right to publish if he keep or can

procure a copy. But the recipient is not bound to keep the original for

his transcription, inspection, or other use.”

Likewise, the relevant case law suggests that senders of e-mail

retain ownership of the copyrights in the sent messages, but not of the

copies themselves (for example, if stored on the recipient’s hard

drive).

Where the only copy in existence is stored on the recipient’s

computer, the author will be able to prevent the further reproduction,

distribution, or display of the e-mail,

but probably will not be able to

compel the recipient to preserve her copy or return it to the author.

At this point there arises a significant divergence between the

typical fact pattern surrounding the ownership of a private letter and

that surrounding the ownership of e-mail. Whereas it is uncommon

for senders of paper-and-pen letters to keep copies of the letters, send-

ers of e-mail do so routinely (often automatically). These copies are

often stored not by the account holder, but by the e-mail service pro-

vider. The issue then becomes whether the account holder, or the ac-

count holder’s heirs, can compel the e-mail service provider to return

the e-mail messages. This issue is explored further in Part III, infra.

92. See Baker v. Libbie, 97 N.E. 109, 111–12 (Mass. 1912) (suggesting author’s

right to publish includes the right to obtain copies from recipient, but conceding that

in most instances it would be an unreasonable burden to impose a duty of preserva-

tion on the recipient) (emphasis added). Although the suggestion in Baker is to a

great extent contradicted by the earlier Grigsby case, supra note 89, allowing the

author to either compel a temporary return of the work or (more reasonably) to obtain

copies of the work gives meaning to the distinction between the ownership of the copy

by the recipient and of the copyright by the sender. Goals of copyright include “as-

sur[ing] contributors to the store of knowledge a fair return for their labors,” Harper &

Row Publishers v. Nation Enterprises, Inc., 471 U.S. 539, 546 (1985), and promoting

the “general benefits derived by the public from the labors of authors.” Fox Film

Corp. v. Doyal, 286 U.S. 123, 127 (1932). Where the only remaining copy of a valua-

ble letter is in the possession of the recipient, preventing access by the author frus-

trates both of these purposes. The author will be deprived of any economic value of

his copyright, and the public will be deprived of the benefits of his labors. The con-

clusion in Grigsby may therefore be sub-optimal in some cases.

93. Grigsby, 65 Ky. at 488. The Grigsby court drew a sharp distinction between

the author’s right to enjoin publication by the recipient and the author’s right to com-

pel the surrender of private letters by the recipient, finding that the author’s rights

included the former but not the latter. Id. at 494.

94. See, e.g., Baker, 97 N.E. at 112 (“Although the particular form of the expres-

sion of the thought remains the property of the writer, the substance and material on

which this thought has been expressed have passed to the recipient of the letter.”);

Wright v. Warner Books, Inc., 953 F.2d 731, 737 (2d Cir. 1991) (“[T]he recipient of

the letters . . . was entitled to keep them.”); Ipswich Mills v. Dillon, 157 N.E. 604, 607

(Mass. 1927) (“[L]etters addressed to the defendants . . . are the sole property of the

defendants . . . .”).

95. See 17 U.S.C. § 106 (2006).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 301

III.

EGAL

TATUS OF

E-M

AIL

: U

SEFUL

NALOGIES

The law of bailment is an appropriate framework for explicating

the ownership of e-mail messages as between authors and e-mail ser-

vice providers. After the law of bailment is introduced and applied in

the context of e-mail, rules drawn from special bailment categories—

warehouses and safe deposit boxes—are considered. The section con-

cludes with a discussion of the implications of the bailment analogy to

the probate of e-mail messages.

A. Bailment Law

When paper-and-pen letters are sent through the mail, copies of

these letters may be distributed over wide geographic areas. Over

time, the letters may become lost, destroyed, discarded, or forgotten,

making retrieval difficult or impossible.

Due to the ease and low cost with which e-mail can be sent

around the world, recipients of a given sender’s e-mail messages may

be even more numerous and widely distributed. However, the task of

locating e-mail messages may be vastly simplified due to a character-

istic of modern e-mail communications: an account holder’s sent e-

mails are frequently stored by the e-mail service provider, thus cen-

tralizing storage of all sent messages. Similarly, messages received by

an account holder may be stored not by the recipient, but by the ser-

vice provider.

Once a message has been received in the account

holder’s inbox, it cannot accidentally slip behind the desk and become

lost as can an ordinary letter. Moreover, because of the low cost of

storage space and ease of electronic organization, e-mail messages

may languish in an account for years without being discarded. This

significant difference between electronic messages and paper-and-pen

messages—namely, possession by a third party (the service provider)

who is neither the sender nor the recipient of the message—motivates

a new paradigm for the analysis of e-mail ownership: bailment.

A bailment is created when personal property is delivered and

accepted by a bailee.

“Bailment . . . is an extremely pervasive form

96. See Elinor Mills, Yahoo Mail to Offer Unlimited Storage,

NET

EWS

COM

Mar. 27, 2007, http://news.com.com/2100-1038_3-6171111.html (comparing e-mail

storage limits of major service providers).

97. One court has more precisely defined bailment as “the delivery of personal

property by one person to another in trust for a specific purpose, with a contract,

express or implied, that the trust shall be faithfully executed, and the property returned

or duly accounted for when the special purpose is accomplished, or kept until the

bailor reclaims it.” Little, Brown & Co. v. Am. Paper Recycling Corp., 824 F. Supp.

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302 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

of transaction in modern society.”

For example, a bailment relation-

ship is established when an automobile is dropped off by its owner at a

service center for vehicle maintenance,

when a box of jewelry is left

at the front desk of a hotel for delivery to a guest,

100

or at the check-

point at an airport where luggage is temporarily relinquished for in-

spection.

101

Even the delivery of a zygote to a medical facility in the

context of an in vitro fertilization procedure has been held to create a

bailment.

102

The law of bailments is largely defined by state law, and the pre-

cise wording of its definition varies somewhat from jurisdiction to ju-

risdiction. The Ninth Circuit, for example, has stated that “[a]

relationship of bailor-bailee arises when the owner, while retaining

general title, delivers personal property to another for some particular

purpose upon an express or implied contract to redeliver the goods

when the purpose has been fulfilled, or to otherwise deal with the

goods according to the bailor’s directions.”

103

Similarly, a Texas ap-

peals court has defined the basic elements of a bailment to be “(1) the

delivery of personal property by one person to another in trust for a

specific purpose; (2) acceptance of such delivery; (3) an express or

implied contract that the trust will be carried out; and (4) an under-

standing under the terms of the contract that the property will be re-

turned to the transferor or dealt with as the transferor directs.”

104

Despite the various phrasings, certain elements of bailment seem

to be fairly consistent. Bailed property must be returned to the

bailor,

105

or at least disposed of according to her directions.

106

The

11, 15 (D. Mass. 1993); see also Hadfield v. Gilchrist, 538 S.E.2d 268, 272 (S.C. Ct.

App. 2000) (“A bailment is created by the delivery of personal property by one person

to another in trust for a specific purpose, pursuant to an express or implied contract to

fulfill that trust.”).

98. Kurt Philip Autor, Bailment Liability: Toward a Standard of Reasonable Care,

S. C

. L. R

2117, 2121 (1988).

99. Burane v. Poppy’s Auto Wreckers, No. 2005-1877 S.C., 2006 WL 3437887, at

*1 (N.Y. Sup. Ct. Nov. 2, 2006).

100. Don-Lin Jewelry Co. v. Westin Hotel Co., 877 A.2d 621, 624 (R.I. 2005).

101. See Best Jewelry Mfg. Co. v. Arc Sec., Inc., 548 S.E.2d 134, 136 (Ga. Ct. App.

2001) (assuming without deciding that bailment was created).

102. York v. Jones, 717 F. Supp. 421, 425 (E.D. Va. 1989).

103. Maulding v. United States, 257 F.2d 56, 60 (9th Cir. 1958).

104. Sisters of Charity of the Incarnate Word v. Meaux, 122 S.W.3d 428, 431 (Tex.

App. 2003).

105. Schenley Affiliated Brands Corp. v. Limbach, 543 N.E.2d 1177, 1182 (Ohio

1989); York v. Jones, 717 F. Supp. at 425 (“The obligation to return the property is

implied from the fact of lawful possession of the personal property of another.”) (cita-

tion omitted).

106. Home Indemnity Co. v. Harleysville Mut. Ins. Co., 166 S.E.2d 819, 824 (S.C.

1969) (“[A]fter the purpose [of the bailment] has been fulfilled, then the chattel shall

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2007] WHO OWNS A DECEDENT’S E-MAILS? 303

bailor retains title to the bailed property while the bailee takes posses-

sion.

107

Neither the intent to create a bailment relationship nor a for-

mal contract is required for a bailment to exist.

108

Whether exclusive

control of the bailed property by the bailee is necessary to form a

bailment is less clear. New York courts have held that whether a bail-

ment relationship exists “turns on whether there is a relinquishment of

exclusive possession, control and dominion over the property.”

109

Michigan and Ohio have similarly required exclusive control by the

bailee.

110

In contrast, Massachusetts has adopted the more liberal po-

sition that a bailment relationship “by definition, arises only upon de-

livery of possession of the property sought to be bailed, and at least

be redelivered to the bailor, or otherwise dealt with according to his directions.”);

Don-Lin Jewelry Co., 877 A.2d at 624 (“[The object of a] bailment . . . shall be

redelivered to the person who delivered it, or otherwise dealt with according to his

directions, or kept until he reclaims it, as the case may be.” (quoting Gallo v. Ameri-

can Egg Co., 72 A.2d 166, 169 (1950))); Sgro v. Getty Petroleum Corp., 854 F. Supp.

1164, 1175 (D.N.J. 1994); Gates v. Powell, 252 P. 377, 379 (Mont. 1926) (“An essen-

tial feature of a bailment is the general agreement to return the subject-matter of the

bailment, either on demand or at the agreed time, or, if not returned, to account for the

property to him from whom the bailee has received it.”) (citation omitted). On the

other hand, the absence of an agreement to return the property could prevent the for-

mation of a bailment relationship in the first instance. See, e.g., Richardson v. DSW,

Inc., No. 05 C 4599, 2005 WL 2978755, at *4 (N.D. Ill. Nov. 3, 2005) (bailment

claim dismissed where consumer alleged that credit card information used to purchase

shoes from defendant was bailed property; consumer did not allege that defendant

agreed to return credit card information, precluding a bailment under Illinois law).

107. “[A] bailment involves a change in possession but not in title.”

LACK

’

ICTIONARY

137 (7th ed. 1999); W.K. Wetherill & Co. v. Scheffel, 18 A.2d 680, 682

(Pa. Super. Ct. 1941) (“[T]he bailee receives possession but not title to the goods for a

particular purpose . . . .”).

108. York v. Jones, 717 F. Supp. at 425 (“While the parties in this case expressed no

intent to create a bailment, under Virginia law, no formal contract or actual meeting of

the minds is necessary.”).

109. Hutton v. Pub. Storage Mgmt., Inc., 676 N.Y.S.2d 886, 886 (N.Y. Sup. Ct.

1998); see also Colangione v. State, 589 N.Y.S.2d 948, 950 (N.Y. App. Div. 1992)

(“[T]he exclusive possession, control and dominion over the dock necessary to give

rise to a bailment is lacking here.”).

110. See, e.g., Beggs v. Disc. Jewelry Ctrs., Inc., No. 256653, 2006 WL 234878, at

*1 (Mich. Ct. App. Jan. 31, 2006) (“In order to constitute a sufficient delivery of the

subject of the bailment, there must be a full transfer to the bailee so as to exclude the

possession of the owner and all other persons and to give to the bailee the sole cus-

tody and control thereof.”) (emphasis added); Ellington v. Gray Barrel & Drum, Inc.,

No. 75724, 1999 WL 462353, at *1 (Ohio Ct. App. July 1, 1999) (Where putative

bailor was the only person with a key to the toolbox, and bailment relationship did not

exist because “[t]he bailee must have sole custody and control of the property.”); see

also

8A A

. J

Bailments § 169 (“[O]rdinarily . . . exclusive possession and

control of the bailed property is a characteristic, if not a requisite, of bailment . . . .”);

Wilson v. Burch Farms, Inc., 627 S.E.2d 249, 258 (N.C. Ct. App. 2006) (“The posses-

sion of the property by the bailee must be such that it is to the exclusion of the owner

and all other persons, and that the bailee has complete control of the property.”).

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304 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

some degree of control over that property, to the putative bailee.”

111

Other states have similarly left open the possibility that exclusive con-

trol is not required for bailment.

112

1. The Bailment of E-Mail

In a sense, e-mail messages are similar to private letters in that

there generally has been transfer of possession and that they may con-

tain personal or confidential information.

113

Although there has been

litigation over the rights of authors of private and business letters for

well over two centuries,

114

e-mail accounts present a different scenario

because the e-mail service provider, in addition to the recipient, is in

possession of the e-mail. It is not surprising that internet (or e-mail)

service providers have been described as bailees of the e-mail

messages they transmit.

115

Just as a sender of a package through the

United States mail intends to transfer possession, but not ownership,

of the package to the post office,

116

a sender of e-mail does not intend

to transfer ownership of or title to her messages to the e-mail service

111. Sewall v. Fitz-Inn Auto Parks, Inc., 330 N.E.2d 853, 854 (Mass. App. Ct. 1975)

(citing

LACK

’

ICTIONARY

179–80, 515–16

(rev. 4th ed. 1968)).

112. See, e.g., Dahl v. St. Paul Fire & Marine Ins. Co., 153 N.W.2d 624, 626 (Wis.

1967) (“We need not determine whether a bailment must exclude all control of the

owner. We can conceive of situations where a bailment might be created which by its

terms would recognize some control of the subject matter of the bailment by the bailor

. . . .”); see also Manor Enters. v. Vivid, Inc., 596 N.W.2d 828, 838 (Wis. Ct. App.

1999) (Roggensack, J., dissenting) (“[T]he bailee is not required to have complete

possession of the property to the exclusion of the bailor . . . .”); Cornia v. Wilcox, 898

P.2d 1379, 1384 (Utah 1995) (agreement under which plaintiff retained right to enter

defendant’s land to vaccinate and brand plaintiff’s cattle did not preclude bailment

relationship); Ferrick Excavating & Grading Co. v. Senger Trucking Co., 484 A.2d

744, 748 (Pa. 1984) (“[T]he bailee’s exclusive control is not a necessary element of a

bailment . . . .”).

113. See Alan Stephens, Copyright Protection for Private Letters, 87

A.L.R. F

871, 877 (1988).

114. Baker v. Libbie, 210 Mass. 599, 601 (1912) (recognizing, nearly a century ago,

that “[t]he rights of the authors of letters of a private or business nature have been the

subject of judicial determination in courts in England and this country for a period of

at least 170 years”).

115. See Stephen E. Henderson, Nothing New Under the Sun? A Technologically

Rational Doctrine of Fourth Amendment Search, 56

ERCER

L. R

507, 531–532

(2005).

116. Postal officers and private carriers have been considered bailees with respect to

the letters or packages they deliver. U.S. Fid. & Guar. Co. v. United States, 246 F.

433, 435 (1917) (“It is well settled that the United States is a bailee for hire of regis-

tered packages and their contents . . . .”); United States v. Am. Sur. Co. of N.Y., 161

F. 149, 151 (C.C.D. Md. 1908) (“The government in the operation of the post office

department is in law regarded as a bailee of the mail matter intrusted to it for transmis-

sion.”), rev’d on other grounds, 163 F. 228 (4th Cir. 1908); see also Patricia L. Bar-

rett, Casenote, Larakoli, Inc. v. Pan American World Airways, 783 F.2d 33 (2d Cir.

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2007] WHO OWNS A DECEDENT’S E-MAILS? 305

provider. The bailed e-mail messages are normally disposed of ac-

cording to the instructions of the account holder, such as by storage,

delivery to their recipients, or deletion. The fact that the disposition of

the bailed property is automated and requires no intervention by a

human agent of the service provider is irrelevant. Bailment requires

only “delivery,”

117

not hand delivery. Moreover, to require that in-

structions (as to the disposition of bailed property) be transmitted to a

person rather than allowing them to be executed automatically by

computer would cause the law to lag unnecessarily behind technologi-

cal progress.

In the case of e-mail, exclusive control has generally not been

transferred to the e-mail service provider, since the account holder re-

tains login and password information allowing at least some degree of

control over the account content. In addition, the recipient of an e-

mail authored by the decedent may have kept a copy of the work,

suggesting a lack of exclusive control by the e-mail service provider

over the intellectual property component of the e-mail message. In

those states not requiring exclusive control, the possible lack of con-

trol presumably would not preclude the formation of a bailment rela-

tionship with respect to e-mail messages. Even where exclusive

control is required, this requirement can be met in the case of a dece-

dent’s e-mail account. If the heirs are not in possession of login infor-

mation, the e-mail service provider is in fact in exclusive control of

the account content.

118

Moreover, the exclusive control requirements

have been applied in different contexts—namely, in actions either for

damage to bailed property while in the custody of the bailee,

119

or for

1986), 52

J. A

L. & C

711, 720 & n.55 (1987) (“[T]he relationship between the

USPS and the sender of mail is a bailment contract.”).

117. See, e.g., Stone v. Crown Diversified Indus. Corp., 9 S.W.3d 659, 669 (Mo.

App. E.D. 1999) (“[B]ailment requires that there be a delivery by the bailor and an

acceptance by the bailee . . .”).

118. It is certainly possible, and indeed likely, that copies of at least some of dece-

dent’s “sent” e-mails may have been retained by their recipients. Similarly, it is likely

that copies of at least some of decedent’s “received” e-mails may have been retained

by their senders. In this sense, the e-mail service provider is not literally in exclusive

control of the work (since there exist copies not within the e-mail service provider’s

control). However, the service provider would still be in exclusive control of its copy

of the work. Moreover, without access to the e-mail account, heirs would in most

cases have no way of identifying either the recipients of the sent e-mails or the send-

ers of the received e-mails. Therefore, the only practical way to access these e-mail

messages would be to procure them from the service provider.

119. See, e.g., Atlantic Contracting & Material Co. v. Adcock, 588 S.E.2d 36 (N.C.

Ct. App. 2003) (construction equipment damaged while stored on defendants

property).

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306 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

injury to third parties due to the negligent acts of the bailee.

120

Where

the relevant inquiry is whether heirs have ownership rights over the

copies of e-mail messages stored on an e-mail service provider’s serv-

ers, the “exclusive control” requirement may well be inapplicable.

2. Bailment of Intangible Property

Even the intangible information contained in an email may be

bailed. It is “fairly well settled that intangible property. . . may be

held in bailment.”

121

Specifically, the information in a letter has been

held to be the subject of a bailment: Liddle v. Salem School District

involved a letter mailed by Monmouth College to Liddle, a student

and high school basketball player attending Salem High School (Sa-

lem), in care of Salem’s basketball coach.

122

The letter allegedly con-

tained an offer of a basketball scholarship at Monmouth College and

was not delivered to Liddle by Salem until seven months after Salem

received it.

123

Noting that “[b]oth tangible and intangible property

may be the subject of a bailment”

124

and that “information may consti-

tute intangible personal property,”

125

the court held that information of

the type contained in the letter was bailable property.

126

3. Return of Property (E-Mail) by Bailee (E-Mail Service

Provider)

Ordinarily, a bailee has a duty to return the bailed property.

127

However, e-mail stored by an e-mail service provider presents some

120.

Washington v. Stephens Leasing, Inc., 540 So.2d 433 (La. Ct. App. 1989) (mo-

tor vehicle injury resulting from collision with leased automobile); see generally 8A

. J

. 2

Bailments § 169 (1997).

121. Autor, supra note 98, at 2125 n.18 (citing E.

ODDARD

, L

AW OF

AILMENTS

AND

ARRIERS

§ 6 (1904)); see also 8A

. J

. 2

Bailments § 3 (1997) (“Any kind

of personal property, whether tangible or intangible, may be the subject of bail-

ment.”);

ICHARD

A. M

ANN

& B

ARRY

S. R

OBERTS

, B

USINESS

AW AND

EGULA-

TION OF

USINESS

1060

(7th ed. 2002) (“Bailed property need not be tangible.

Intangible property, such as the rights represented by promissory notes, corporate

bonds, shares of stock, documents of title, and life insurance policies that are evi-

denced by written instruments and are thus capable of delivery, may be and frequently

are the subject matter of bailments.”).

122. Liddle v. Salem School Dist., 619 N.E.2d 530, 530 (Ill. App. Ct. 1993).

123. Id. at 530.

124. Id. at 531.

125. Id. at 532.

126. Id. at 533.

127. 8A

. J

. 2

Bailments § 134 (1997); see, e.g., Walton Commercial Enters.,

Inc. v. Ass’ns, Conventions, Tradeshows, Inc., 593 N.E.2d 64, 67 (Ohio Ct. App.

1990) (Under common law principles of bailment, “the bailee . . . is under a strict duty

to return the bailed goods at the expiration of the term of bailment.”).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 307

distinguishing circumstances not normally present in the bailor-bailee

relationship. Most important among these differences is that the bailor

(in this case the e-mail account holder) normally has access to the

bailed property. That is, return of the property (e-mail) is under her

control, as she is free to download it to her home computer. This may

mitigate the bailee service provider’s obligation to return the

property.

128

Nonetheless, a legal dispute with respect to a decedent’s e-mail is

most likely to arise where those the decedent leaves behind are not in

possession of login and password information and therefore cannot

access the e-mail messages. Thus, the service provider as bailee may

be under a duty either to return the e-mail to the decedent’s heirs or

executors, or to provide account access.

129

By analogy, imagine a sce-

nario where a decedent leaves behind stored private property in a safe

deposit box or other storage facility.

130

If the heirs are unable to find

the key among the decedent’s possessions, the bank or storage facility

would not likely claim that the heirs have no right to the property.

131

4. Contractual Modification of the Bailment Relationship

Although a bailee is ordinarily under an obligation to return

bailed property, the contract between the e-mail service provider and

the account holder must be considered. Absent a controlling statute or

contrary public policy, or where a controlling statute allows for private

128. See supra notes 105–112 and accompanying text. On the other hand, software

design may make it impractical to download the gigabytes of e-mail that may be

stored on the e-mail service provider’s server. A possible solution from the e-mail

service provider’s perspective is to design software in such a way as to allow for

download of all messages at the click of a button. This would obviate the need to

transfer messages to a disk and then mail them to the heirs of a deceased account

holder, which was the cumbersome solution adopted by Yahoo! pursuant to the

court’s order in Ellsworth. Stephanie Olsen, Yahoo! Opens Up Dead Marine’s Email,

CNET N

EWS

, Apr. 22, 2005, http://news.zdnet.co.uk/internet/0,39020369,39195962,

00.htm.

129. It can be argued that providing a “key” to access the bailed property is, at least

in some cases, equivalent in law to returning the bailed property. C.f. Burnham v.

Martin, 90 Ill. 438, 438 (1878) (concluding that, by retaining the key to a house, the

renter had constructive possession of the house and was obligated to pay rent);

Chadrow v. Kellman, 106 A.2d 594, 598 (Pa. 1954) (“[I]n order to make a valid inter

vivos gift of the contents of a safe deposit box there must be an actual delivery of the

contents, or the delivery of a key to the box . . . .”); see also Nudd v. Montanye, 38

Wis. 511, 512 (1875).

130. For a more detailed treatment of this analogy, see infra Parts III.B–C.

131. See Hurt v. Bank One, 718 N.E.2d 485, 486 (Ohio Ct. App. 1998) (regarding

bank that drilled open a safety deposit box on behalf of an heir who had lost her key);

In re Estate of Mecello, 633 N.W.2d 892, 906 (Neb. 2001) (involving facts similar to

those of Hurt).

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308 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

modification, the parties are free to contract as to the ownership and

exercise of property rights.

132

This is true with respect to bailments,

where duties as to the bailed property may be modified by contract.

133

Does it then follow that the parties are free to contract such that the e-

mail messages need not be returned under certain circumstances, such

as in the case of death?

Although there have been no reported cases squarely addressing

the matter, a clear and unequivocal statute such as Connecticut and

others’ that mandates the transfer of e-mail messages to an account

holder’s heirs would probably override a contractual provision to the

contrary.

134

Even in the absence of such a statute, public policy con-

siderations might allow a court to reach the same result, rendering

boilerplate termination clauses ineffective in the face of society’s in-

creasing dependence on electronic communication and the significant

disruption that might result if heirs are denied access to accounts.

B. Warehouse Law

The law of warehouses lends further support to the proposition

that, as a general rule, e-mail service providers should be obligated to

transfer e-mail messages to heirs. A warehouse operator is a special

type of bailee who accepts goods for storage.

135

Because e-mail ser-

132. See supra note 68 and accompanying text.

133. Umentum v. Arendt, 66 N.W. 2d 192, 195 (1954) (parties may by contract

modify general rule that failure of bailee to redeliver property at end of term permits

bailor to construe bailment as renewed); Hall v. Gardens Services, Inc., 332 S.E.2d 3,

4 (Ga. Ct. App. 1985) (“Generally, except for statutes and public policy, the bailment

contract governs the rights, duties, and liabilities of a bailor and bailee as between

themselves.”); 8A

. J

. 2

Bailments § 29 (1997) (“[T]he bailment contract is

governed by the same rules of law that govern other contracts. Thus . . . an express

agreement will prevail against general principles of law . . . .”). Thus, absent a con-

trolling statute, it appears that e-mail service providers and account holders are legally

able to include in the service contract a provision that the account contents be de-

stroyed upon the death of the account holder. If such a provision truly reflects the

intent of both parties, it is unlikely that public policy would prevent this result.

134. See, e.g., Denham v. Bedford, 287 N.W.2d 168, 168–169 (Mich. 1980) (where

pre-judgment interest is mandated by law, insurer cannot escape payment by inclusion

of contractual provision purportedly limiting such payment).

135. See, e.g., Brace v. Salem Cold Storage, Inc., 118 S.E.2d 799, 804 (W. Va.

1961) (“It is well settled that when goods are stored in a warehouse, the relation of

bailor and bailee . . . is created between the depositor or owner of the goods and the

warehouseman. The warehouseman is a bailee for hire.” (quoting 56

. J

. Ware-

houses § 21) (internal quotations omitted)); Dahl v. St. Paul Fire & Marine Ins. Co.,

153 N.W.2d 624, 625–26 (Wis. 1967) (“As a general rule the warehouseman who

offers to store goods for a price is a bailee for hire and when the goods are accepted

and stored in the warehouse, the relationship of bailor and bailee is created.”); Ry.

Express Agency v. Schoen, 216 P.2d 420, 422 (Ariz. 1950) (“A warehouseman . . . is

a bailee for hire.”).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 309

vice providers store e-mail messages on behalf of account holders (in

addition to facilitating e-mail transmission), the law of warehouses is a

useful analogy.

Article 7 of the Uniform Commercial Code (U.C.C.) governs

warehouse law and places restrictions on the terms of the warehouse

receipt.

136

A warehouse receipt is a type of contract between the

bailor and the bailee (also known as the “warehouseman”);

137

thus, the

law governing warehouse receipts is instructive with respect to the

interplay of statutes and contracts for bailment. The U.C.C. prohibits

a warehouseman from inserting in the warehouse receipt a provision

impairing her obligation of delivery to the bailor.

138

To some extent, a

warehouse may contractually limit its liability for the loss of or dam-

age to the bailed property.

139

If a warehouseman seeks to terminate

storage, she must provide at least thirty days notice to the person on

whose account the goods are held.

140

Furthermore, if the warehouse

receipt has been lost, a court may order delivery of the goods to the

bailor.

141

By analogy, e-mail service providers could be prohibited from

inserting into the service agreement a provision impairing their obliga-

tion to deliver the e-mail to the account holder or the holder’s heirs.

142

If the account must be closed, e-mail service providers could be re-

136.

U.C.C.

Art. 7 (2005). Federal legislation addresses the warehousing of agricul-

tural products. 7 U.S.C. §§ 241–73 (1994). See also Drew L. Kershen, Comparing

the United States Warehouse Act and U.C.C. Article 7,

27 C

REIGHTON

L. R

. 735

736–39 (1994).

137. Providence Warehouse Co. v. Providence & W.R. Co., 34 A. 739, 740 (R.I.

1896) (“It is true, in general, that a warehouse receipt is a contract . . . .”).

138. U.C.C. § 7-202(3) (2005) (“A warehouse may insert in its receipt any other

terms which are not contrary to the provisions of this Act and do not impair his obli-

gation of delivery. . . . Any contrary provision is ineffective.”).

139. U.C.C. § 7-204(2) (2005). Additionally, “strong policy considerations bar en-

forcement” of contractual limitations upon the warehouse’s liability where the ware-

house intentionally converts the goods to its own use. I.C.C. Metals, Inc. v. Mun.

Warehouse Co., 409 N.E.2d 849, 852–53 (N.Y. 1980); see also U.C.C. § 7-204(2)

(2005).

140. U.C.C. § 7-206(1) (2005) (“A warehouseman may on notifying the person on

whose account the goods are held . . . require payment of any charges and removal of

the goods from the warehouse at the termination of the period of storage fixed by the

document, or, if no period is fixed, within a stated period not less than thirty days after

the notification.”).

141. U.C.C. § 7-601(1) (2005).

142. This is not to suggest that the account holder should be prohibited from affirma-

tively requesting that the account contents be deleted in the case of death. However,

where account termination provisions are contained in contracts of adhesion, the opti-

mum default rule is to return the property to its owner. This is partly because the

value to the owner of the e-mail messages may be far greater than the market value (or

“exchange value”) of the property, and existing legal rules by and large fail to account

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310 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

quired to provide thirty days notice (or some other reasonable period)

prior to the termination of the account. Finally, if the login informa-

tion (analogous to the warehouse receipt) is lost or not passed to heirs,

a court could order the transfer of the e-mail to the account holder or

the account holder’s heirs.

143

C. Law of Safe Deposit Boxes

Another useful comparison can be made between storing e-mail

on an e-mail service provider’s server and storing possessions in a

bank’s safe deposit box. This is particularly enlightening in the con-

text of bailment, because in both cases the bailee may retain access to

the property either by means of a physical key or by means of a login

name and password.

144

Although the depositor has access to the con-

tents of the safe deposit box by use of the key, the fact that the bank

does not have exclusive control of the safe deposit box does not pre-

clude the formation of a bailment.

145

Similarly, lack of exclusive con-

for such personal value. See Christopher Adver. Group Inc. v. R & B Holding Co.,

Inc., 883 So.2d 867, 871–872 (Fla. Dist. Ct. App. 2004).

143.

Warehouse law also provides an analogy to the legitimate interests of e-mail

service providers in not releasing account information except on the presentation of

adequate documentation. See U.C.C. § 7-601(2) (2005) (“A bailee who without court

order delivers goods to a person claiming under a missing negotiable document is

liable to any person injured thereby, and if the delivery is not in good faith becomes

liable for conversion.”). For a discussion of warehouse liability in the case of a miss-

ing warehouse receipt, see Kershen, supra note 136, at 767–70.

144.

In some cases a safety deposit box (or similar device) may be accessible only by

the simultaneous use of both the bailee’s and bailor’s keys. See, e.g., Oppenheimer v.

Morton Hotel Corp., 210 F. Supp. 609, 615–16 (W.D. Mich. 1962); City Sav. Bank &

Trust Co. v. Pluchel, 175 N.E. 213, 215 (Ohio Ct. App. 1931).

145.

See Morgan v. Citizens’ Bank of Spring Hope, 129 S.E. 585, 587 (N.C. 1925)

(“The decided weight of authority is to the effect that the relationship between a bank

and its customer, resulting from the rental by the former to the latter of a safety de-

posit box, with respect to the contents of said box . . . is that of bailor and bailee

. . . .”); Schaefer v. Washington Safety Deposit Co., 117 N.E. 781, 783 (Ill. 1917)

(“The relation between the plaintiff [depositor] and defendant [Safety Deposit Co.]

was one of bailment, and the defendant, without any special contract to such effect,

was bound to use ordinary care in keeping the deposit although the plaintiff, who

rented the box, kept the key.”); see also 11

. J

. 2

Banks and Financial Institu-

tions § 1013 (1997) (“The prevailing rule appears to be that where a safe-deposit

company leases a safe-deposit box or safe and the lessee takes possession of the box

or safe and places therein his securities or other valuables, the relation of bailee and

bailor is created between the parties to the transaction as to such securities or other

valuables. . . . That access to the contents of the safe-deposit box can be had only by

the use of a key retained by the lessee (whether it is the sole key or one to be used in

connection with one retained by the lessor) does not operate to alter the foregoing

rule.”). But see Wells v. Cole, 260 N.W. 520, 521 (Minn. 1935) (where bank cannot

open safety deposit box without depositor’s key, the relationship is that of lessor and

lessee rather than bailor and bailee); Farmers Bank of Greenwood v. Perry, 787

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2007] WHO OWNS A DECEDENT’S E-MAILS? 311

trol by the e-mail service provider should not preclude the formation

of a bailment. Furthermore, states may provide by statute that con-

tents of a safe deposit box may pass to “executors, administrators or

legal representatives of [a] decedent, or to the survivor or survi-

vors.”

146

States could provide analogous rules for e-mail transmission

upon death. When transferring the contents of a safe deposit box to

the next-of-kin, banks are held to a reasonable standard of care in en-

suring that contents are delivered to the rightful possessors: “On the

death of a depositor, a safe-deposit company is bound to deliver the

contents of the box only to the person or persons on whom the law

casts the title with the right to possession. . . .”

147

A bank may be

liable for negligently permitting unauthorized access to the contents of

the safe deposit box despite purported contractual limitations on such

liability.

148

Similarly, e-mail service providers should be obligated

(absent a contrary and clearly expressed intent) to deliver the contents

of a decedent’s e-mail account to the rightful heirs, and should be

under a legal duty to take reasonable care in identifying these heirs.

As with safe deposit boxes, considerations of public policy should

place reasonable limits on the ability of e-mail service providers to

disclaim liability for all negligence by contract.

D. E-Mail as a Probate Asset

For the purposes of federal tax law, “[p]robate assets are those

assets of the decedent, includible in the gross estate under IRC § 2033,

that were held in his or her name at [the] time of death.”

149

The Inter-

S.W.2d 645, 651 (Ark. 1990) (Hays, J. dissenting) (“Unlike bailments generally, a

safety deposit box holder has access to the contents of the box which is at least equal

to, and probably greater than, that of the bank.”).

146. People ex rel. Glynn v. Mercantile Safe Deposit Co., 159 A.D. 98, 100 (N.Y.

App. Div. 1913); Nat’l Safe Deposit Co. v. Stead, 232 U.S. 58, 69 (1914) (“[T]he

[s]tate could provide for the appointment of administrators, for the distribution to

heirs or legatees of all the property of the deceased and . . . could . . . legislate as to

. . . the time when the administrator or executor could take possession [of the safe

deposit box’s contents].”).

147. 11

. J

. 2

Banks and Financial Institutions § 1024 (1997).

148. An exculpatory clause in a contract for the use of a safe deposit box that re-

lieves a bank of liability for ordinary negligence, but not for gross negligence, fraud,

or bad faith has been held enforceable. Fed. Deposit Ins. Corp. v. Carr´e, 436 So. 2d

227, 229 (Fla. Dist. Ct. App. 1983). However, “a bank cannot exculpate itself from

all liability to its safety deposit box customers.” Jewelers Mut. Ins. Co. v. Firstar

Bank Ill., 820 N.E.2d 411, 417 (Ill. 2004).

149.

NTERNAL

EVENUE

ERV

., I

NTERNAL

EVENUE

ANUAL

§ 5.5.7.5 (2005),

available at http://www.irs.gov/irm/part5/ch05s07.html#d0e59316. State case law

may also define probate assets. See, e.g., In re Estate of Lamparella, 109 P.3d 959,

961 n.1 (Ariz. Ct. App. 2005) (“Probate assets are those transferred by testate or

intestate succession; non-probate assets are those transferred outside of probate, such

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312 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

nal Revenue Code defines the “gross estate” as “the value at the time

of [decedent’s] death of all property, real or personal, tangible or in-

tangible, wherever situated.”

150

Assuming that the author’s ownership

rights in e-mail messages have not been contractually extinguished, it

seems clear that these messages should be considered probate assets

that would therefore be subject to the same inheritability rules as other

probate assets.

151

The fact that the e-mail is in the possession of a

third party should make no difference, since the gross estate reflects

the value of all property “wherever situated.”

152

Nor does the classifi-

cation of e-mail as either tangible or intangible matter, since “all prop-

erty . . .[whether] tangible or intangible” is considered when

determining the gross estate.

153

To illustrate the point, suppose that the deceased had stored all of

her household items at a commercial storage facility prior to her death.

The storage facility could not claim that it has the right to keep or

destroy all of the stored possessions (although the storage facility may

be entitled to fees accrued after the death, and there may be a reasona-

ble time limit imposed on the collection of the items).

154

as jointly owned property, life insurance proceeds, payable-on-death accounts or other

revocable dispositions made by a divorced spouse to a former spouse before the disso-

lution.”); Horwitz v. Ritholz, 465 N.E.2d 642, 645 n.4 (Ill. App. Ct. 1984) (“Estate

assets (sometimes called ‘probate assets’) ‘are those which are subject to the control

of the probate court. . . . Generally, estate (or probate) assets are those which are

solely owned by the [testator]. They also include his share of property held as a

tenant in common with one or more others, and life insurance and other property

payable to the estate. All other assets and property rights of the [testator] are included

in the term ‘non-probate assets.’” (quoting

R.S. H

UNTER

, E

STATE

LANNING AND

D-

MINISTRATION IN

LLINOIS

(2d ed. 1981)).

150. I.R.C. § 2031(a) (2006). Furthermore, “[t]he value of the gross estate shall in-

clude the value of all property to the extent of the interest therein of the decedent at

the time of his death.” I.R.C. § 2033 (2006). Presumably, this would only be a sig-

nificant consideration for famous individuals whose e-mails may command a market

value, or for those individuals who have created valuable literary works that have not

been published or stored elsewhere. The personal representative of an estate may

employ an appraiser to ascertain the value of an e-mail account.

NIF

. P

ROBATE

ODE

§ 3-707, 8 U.L.A. 154 (1998) (“The personal representative may employ a

qualified and disinterested appraiser to assist him in ascertaining the fair market value

as of the date of the decedent’s death of any asset the value of which may be subject

to reasonable doubt.”).

151. An exception may be e-mail accounts jointly held, for example, by husband and

wife, in which case the contents of the account would seem to pass as a non-probate

asset. See

NTERNAL

EVENUE

ERV

, supra note 149, § 5.5.7.6 (defining non-probate

assets as including joint interests).

152. I.R.C. § 2031(a) (2006).

153. Id.

154. See U.C.C. § 7-206 (2005).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 313

IV.

NALYSIS

: T

EGAL

TATUS OF

ECEDENTS

’ E-M

AIL

A. E-Mail Ownership Remains with the Account Holder

As described above, an e-mail message is the creation of its au-

thor and, as such, should be considered the author’s property.

155

As a

general rule, the author’s rights in her e-mail should be equivalent to

her rights in her private letters.

156

That is, the author retains a copy-

right in messages authored by her, and retains ownership of the copies

(as distinct from the copyrights) of the messages received by her.

157

Where such sent or received messages are placed in the possession of

a third party (such as an e-mail service provider) for safekeeping, a

bailment relationship is created by which the e-mail service provider

acquires possession of the e-mail messages while the account holder

retains ownership of those messages.

158

In the case of death, heirs

should be able to inherit e-mail messages just as they would inherit

private letters and other possessions of the deceased.

159

Recent state

laws, court decisions, and the policies of e-mail service providers

themselves (all of which have increasingly favored account holder

rights, as described above) support these conclusions.

160

Neverthe-

less, because privacy is sometimes asserted as a factor disfavoring

transmission to heirs, the issue must be addressed.

B. The Misplaced Privacy Argument

When the parents of deceased Marine Corps reservist Karl Linn

contacted the company that hosted their son’s e-mail account, they

were told that protecting customers’ privacy was top priority and that

no information about the account could be provided.

161

However,

while the privacy of the account holder is often cited as a factor

weighing against disclosure, privacy rights are generally considered to

cease upon death.

162

Moreover, private letters, diaries, and photo-

graphs can be inherited,

163

and may contain equally private

information.

155. See supra notes 39–48 and accompanying text.

156. See id.

157. See supra Part II.D.

158. See supra Part III.A.

159. See supra Part III.D.

160. See supra Parts I & II.C.

161. Cha, supra note 2.

162. See

ESTATEMENT

ECOND

)

ORTS

§ 652I (1977); Bick, supra note 62.

163. See, e.g., Humphreys v. DeRoss, 790 A.2d 281, 289 (Pa. 2002) (Castille, J.,

dissenting) (“Personal belongings, letters, mementos, family photographs and the like

are all common bequests . . . .”); In re Mildrexter, 971 P.2d 758, 759 (Kan. App.

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314 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

On the other hand, while a common law cause of action for inva-

sion of privacy may cease upon death, general freedom of contract

principles suggest that it may still be possible to create a contractual

right of privacy which is effective to protect private information of

deceased individuals.

164

Furthermore, e-mail service providers have a

legitimate interest in protecting the privacy rights of living account

holders, and may be concerned about fraudulent claims.

165

Finally,

the contents of an e-mail account may contain private information of

third parties, though here again, this is not a new legal issue since

private letters have always potentially contained private information

of third parties.

Thus, the privacy argument asserted by those opposing the inher-

itance of e-mail is largely misplaced. Although the explicit and

clearly expressed intent of account holders requesting that account

content not be transferred to heirs should be respected under general

principles of freedom of contract, boilerplate provisions in contracts of

adhesion drafted by e-mail service providers should not be allowed to

rewrite probate laws such that heirs are unable to inherit what would

otherwise be inheritable.

ECOMMENDATIONS

A. Recommendations for Account Holders, Heirs,

and E-Mail Service Providers

Given the current state of affairs regarding e-mail ownership and

transfer rights, e-mail users can take different actions depending on

whether they seek to promote or prevent posthumous transfer of the

contents of their e-mail accounts. Those seeking to promote transfer

can provide password and login identification information to loved

ones, allowing them to retrieve e-mail in the case of death. They can

also save copies of important e-mail messages to hard drives or create

hardcopy files that will pass along with other papers and effects.

Although this Article has focused on the recommended default

rule for enabling the transfer of e-mail at the time of death, some e-

mail account holders may prefer that their e-mail messages not be

passed to heirs. Given the principles of freedom of contract described

1999); Monk v. Monk, No. CA97-04-039, 1997 WL 700061, at *1 (Ohio App. Nov.

10, 1997).

164. See supra note 68 and accompanying text.

165. See supra notes 71 & 142 and accompanying text.

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2007] WHO OWNS A DECEDENT’S E-MAILS? 315

above,

166

a default law facilitating e-mail transfer to heirs should al-

low for account holders to make alternate arrangements. For example,

one commentator has suggested that those seeking to maintain confi-

dentiality could instruct their executor to delete sensitive files after

death.

167

It has similarly been suggested that it would be possible to

bequeath e-mail to a trustee who is instructed to destroy it.

168

This

estate planning technique allows the creator of the trust and the plan-

ner to select an independent trustee with detailed instructions under

the trust (e.g., they may include a specific distribution of the e-mails to

a designated person).

However, a great deal of forethought and planning are required

for such measures,

169

and simpler methods may be just as effective.

One obvious but unappealing solution is to not send sensitive informa-

tion via e-mail, but this would sharply limit the utility of e-mail. A

second option would be to follow the lead of some corporations and

purge e-mail accounts of private messages on a regular basis.

170

third option is to use a separate (and perhaps anonymous) e-mail ac-

count for sensitive information. If heirs are unaware of the existence

of an account, they will not be able to request access to it and the

166.

See supra Parts II.C.1–2.

167.

Scott Reeves, Estate Planning in the Digital Age,

ORBES

, Jan. 30, 2006, http://

www.forbes.com/2006/01/27/microsoft-google-yahoo-cx_sr_0130death.html.

168.

Leach, supra note 6. Some might argue that this is essentially what has been

done by contract between e-mail service providers such as Yahoo! and account hold-

ers; i.e., it has been agreed that the service provider will destroy the account contents

upon the death of the account holder. See supra note 9 and accompanying text.

169.

Recent surveys have found that fewer than half of American adults have wills.

See, e.g., Kathy Chu, Fewer Estates Exercise Will Power,

ALL

. J.,

June 10, 2004,

at D2 (noting that “in 2004, only about 42% of adults had a will, down from 47% in

2000”); Press Release, Findlaw, Most Americans Still Don’t Have a Will, Says New

Survey by Findlaw (Aug. 19, 2002), available at http://company.findlaw.com/pr/

2002/081902.will.html (noting the results of a one thousand-person national survey in

which only 44% of American adults reported having a will). Not surprisingly, the

percentage of people with a will generally increases with age.

AARP, W

HERE

IS A

ILL

. . .: L

EGAL

OCUMENTS

MONG THE

50+ P

OPULATION

: F

INDINGS

ROM AN

AARP S

URVEY

fig.1 (2000), available at http://assets.aarp.org/rgcenter/econ/will.

pdf (noting percentage of Americans that report having a will by age category: 50-54

(44%); 55-59 (55%); 60-64 (55%); 65-69 (65%); 70-74 (75%); 75-79 (71%); 80+

(85%)). By contrast, the percentage of people using the internet generally decreases

with age.

NTERNET AND

. L

IFE

ROJECT

, D

ATA

EMO

: I

NTERNET

ENETRA-

TION AND

MPACT

4 (2006), http://www.pewinternet.org/pdfs/PIP_Internet_Impact.pdf

(noting the percent of individuals using the internet by age category: 12-17 (87%), 18-

29 (88%), 30-49 (84%), 50-64 (71%), 65 and older (32%)).

170.

AVID

P. T

WOMEY

& M

ARIANNE

OODY

ENNINGS

USINESS

: P

RINCI-

PLES FOR

ODAY

’

OMMERCIAL

NVIRONMENT

101 (West 2004).

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316 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

contents may be erased pursuant to the e-mail service provider’s ac-

count inactivity policy.

171

Assuming it is not against the wishes of the deceased, the best

option for heirs seeking to obtain e-mail account content is to follow

(where available) the procedures established by e-mail service provid-

ers such as Microsoft or Google, which release account information

upon the submission of certain documentation.

172

If the e-mail service

provider does not have such a policy, heirs may be able to rely on state

law commanding such transfer, or failing that, on a court order as in

the Ellsworth case.

E-mail service providers, for their part, can enable users to opt in

to certain policies upon the creation of e-mail accounts (e.g, “I hereby

request e-mail service provider to destroy the contents of my e-mail

account in the case of my death” or, “I hereby request e-mail service

provider to release the contents of my e-mail account to the following

individual(s) in the case of my death.”). This type of measure will

clarify intent and help give effect to the account holder’s wishes.

Because e-mail is now widely available to United States military

personnel serving overseas,

173

special provisions should be afforded to

171. See, e.g., Harvard Medical School Email Account Policy, http://www.hms.

harvard.edu/it/email/email_account_policy.html (last visited Mar. 21, 2007) (“Any

email account which has not been accessed in 1 year (365 days) will be inactivated.”);

Gmail Program Policies, http://www.google.com/mail/help/program_policies.html

(last visited Mar. 21, 2007) (“Google will terminate your account in accordance with

Section 9 of the Terms of Use if you fail to login to your account for a period of nine

months.”); About AOL, AOL Network Registered User Terms of Service, http://

about.aol.com/aolnetwork/terms_use (last visited Mar. 21, 2007) (“We reserve the

right to cancel any free e-mail account that is inactive for more than 30 days, and any

data on a deactivated account may not be retrieved later. You are solely responsible

for backing up and archiving any important email.”); Yahoo! Terms of Service, supra

note 9, § 12 (“You acknowledge that Yahoo! may establish general practices and

limits concerning . . . the maximum number of days that email messages . . . will be

retained . . . . Yahoo! reserves the right to modify these general practices and limits

from time to time.”).

172. See supra note 72.

173. Margaret McBride, Video E-Mail Launches for Deployed Soldiers, Families,

. F

ORCES

RESS

ERVICE

, Dec. 12, 2006, available at http://www.defenselink.mil/

news/NewsArticle.aspx?ID=2390 (“[Video e-mail] messaging allows all deployed ac-

tive-duty, National Guard and Army Reserve soldiers to create video messages on a

computer with a Web cam. The message is then stored on a server and sent to the

recipient via a link.”); Robert Plummer, US Powerless to Halt Iraq Net Images,

BBC

EWS

NLINE

, http://news.bbc.co.uk/2/hi/americas/3695897.stm (last updated May 8,

2004) (“[US Military personnel are] often linked to the internet and it’s a legitimate

means of allowing soldiers to communicate with their families.”); Brad Knicker-

bocker, Soldier Blogs Bring the Front Line to the Folks at Home,

HRISTIAN

CIENCE

ONITOR

, Apr. 19, 2005, available at http://www.csmonitor.com/2005/0419/p01s05-

ussc.html (“American GIs and military families can communicate freely and in real

time via e-mail . . . .”).

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2007] WHO OWNS A DECEDENT’S E-MAILS? 317

them in their estate plans.

174

Their “last documents” should make pro-

visions for the distribution or disposal of their e-mails upon their

demise.

B. Policy Recommendations

In the long run it is probably desirable to have uniform laws ad-

dressing e-mail ownership and transfer.

175

These laws should balance:

(1) the privacy and ownership interests of account holders; (2) the

interests of heirs in obtaining the property of loved ones; and (3) the

interests of e-mail service providers in reducing liability exposure and

administrative expenses. The creation of uniform laws, even if only

achieving a non-optimal balancing of these interests, will benefit soci-

ety by allowing all parties concerned to adjust their behavior to

achieve these goals.

176

The suggested uniform laws should take the

form of state laws that adopt a uniform policy as found in the Uniform

174.

Those serving in the military are encouraged (but not required) to execute wills.

Kevin P. Flood, Estate Planning for the Military,

GPS

OLO

, at 1, http://www.abanet.

org/genpractice/legalface/pdf/flood.pdf (last visited Mar. 21, 2007) (noting that “more

than 550,000 wills were prepared for active duty and reserve service members during

the Desert Storm mobilizations”); see also Theresa A. Bruno, The Deployment Will,

A.F. L. R

211, 212 (1999) (noting that although “Air Force legal offices are

required to assist in the preparation of . . . wills,” not all airmen take advantage of

these services).

175.

The National Conference of Commissioners has drafted more than 200 uniform

laws since its inception in 1892. The National Conference of Commissioners on Uni-

form State Laws, http://www.nccusl.org/ (follow “About NCCUSL” hyperlink; then

follow “Introduction to the Organization” hyperlink). Included among them are the

Uniform Probate Code, the Uniform Child Custody Jurisdiction Act, the Uniform

Partnership Act, the Uniform Anatomical Gift Act, the Uniform Limited Partnership

Act, and the Uniform Commercial Code (the latter in partnership with the American

Law Institute). Id. The Uniform Commercial Code is the most well-known and suc-

cessful among these. Lawrence J. Bugge, Commercial Law, Federalism, and the Fu-

ture,

17 D

. J. C

ORP

. L. 11

, 13 (1992).

176. It is now widely known that employee e-mails are readable by the employer and

discoverable in litigation. See, e.g., Mosaid Techs. Inc. v. Samsung Elecs. Co., No.

Civ.A.01-CV-4340, 2004 WL 2550306, at *3 (D.N.J. July 7, 2004) (“[Defendants]

knew, or should have known, th[at] e-mails were discoverable, given their heavy reli-

ance on e-mails obtained from plaintiff during discovery, not to mention the obvious

realities of modern litigation.”) (emphasis added); Antioch Co. v. Scrapbook Borders,

Inc., 210 F.R.D. 645, 652 (“[I]t is a well accepted proposition that deleted computer

files, whether they be e-mails or otherwise, are discoverable.”). Because of this clear

rule of discoverability, businesses and individuals have been able to modify their be-

havior in order to maintain reasonable privacy levels. See, e.g., Ira Genberg, Litiga-

tion’s Domain Covers All Email,

NGINEERING

EWS

-R

, May 9, 2005, at 47

(advocating that business owners implement electronic document management and

retention policies even before litigation is threatened or pending). Similarly, having

clear rules regarding the inheritability of private e-mails will allow users to adjust

their behavior accordingly.

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318 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

Commercial Code rather than federal laws. Because cyberlaw is a

developing and rapidly changing field, states should initially be al-

lowed to experiment with different approaches to defining the legal

boundaries of the ownership of e-mail. Over time, those approaches

that work best would emerge with greater clarity. Although federal

legislation could be expected to produce uniformity more quickly and

immediately produce greater certainty, the risk is that in passing such

legislation without a complete understanding of the implications, a

sub-optimal standard might be too quickly adopted.

177

Additionally, it

has been suggested that proposed laws such as those promulgated by

the National Conference of Commissioners on Uniform State Laws

are “consistently higher” in quality than federal legislation.

178

It is not difficult to understand the significance of e-mail

messages to the loved ones the deceased leaves behind. In addition,

practical motivations exist for the transfer of e-mail to heirs. As on-

line bill paying becomes more common, e-mail billing statements may

be the only manner in which an executor can become aware of unpaid

bills. As one heir reported, regarding his deceased father’s internet

business, “I couldn’t access his accounts or pay suppliers. . . . People

run their lives through [the Microsoft] Outlook [e-mail application],

but I couldn’t access that either, so I couldn’t reach his customers to

inform them that he’d died.”

179

To prevent such problems, state pro-

bate laws should provide for the transfer of e-mail messages to family

members or other heirs upon death, as has been done in Connecti-

cut.

180

Such laws would provide notice to account holders and would

allow them to arrange their affairs accordingly, thereby mitigating pri-

vacy concerns.

181

177. See Fred H. Miller, The Uniform Law Process for the Development of Private

State Law in the United States: A Model for Other Systems?, 60

ONSUMER

. L.Q.

4, 5 (2006) (“One happenstance of a federal system is to serve as a laboratory.

Diversity fosters innovation and continued updating of the law. Congressional action

tends to freeze the resulting product, much like treaties.”).

178. Lawrence J. Bugge, Commercial Law, Federalism, and the Future,

17 D

. J.

ORP

. L. 11

, 23 (1992).

179. Reeves, supra note 167.

180. See supra note 69 and accompanying text.

181. These laws should clarify that internet service providers may charge a reasona-

ble fee if, for example, account content is shipped by compact disk, and that monthly

account fees may continue to accrue until the account is closed (such monthly fees

would not apply in the case of free e-mail accounts). Furthermore, since it is perhaps

unreasonable to require e-mail service providers to maintain account contents indefi-

nitely, a reasonable time limit should be imposed during which heirs can present

proper documentation. For small estates, these suggestions could be accomplished by

modifying section 3-1201 of the Uniform Probate Code to clarify that e-mail service

providers must provide access to the e-mail account of the decedent upon the presen-

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2007] WHO OWNS A DECEDENT’S E-MAILS? 319

More generally, the Uniform Probate Code could be modified in

several ways. Section 2-203, for example, could clarify whether e-

mail is considered personal property:

182

e.g., “E-mail stored in an ac-

count of the decedent, regardless of the physical location of the stor-

age device on which the contents of the account are stored, shall be

considered inheritable personal property.” Similarly, section 3-706

could specify that property includes e-mail accounts.

183

Section 3-709

could be modified to provide that personal representatives may obtain

the contents of e-mail accounts.

184

Section 3-711 could specify that

personal representatives may access private e-mail accounts of the de-

ceased.

185

Finally, section 3-814 could be amended to provide that

personal representatives may pay e-mail service provider account fees

as necessary to obtain the contents of a deceased’s e-mail account.

186

VI.

ONCLUSION

As technology develops, so too must the law. The ownership and

intellectual property interests authors have in their electronically

stored e-mail accounts are no less legitimate than are such interests in

messages created with paper and pen. Though there may be additional

considerations, there is no need to formulate a completely new para-

digm of law to protect the interests of all involved. At the same time,

tation of certain documentation (this section currently provides for the collection by

the decedent’s successors of the decedent’s personal property held by others or debt

owed to the decedent). Section 4-201 could similarly be modified where the e-mail

service provider is located in a different state from the decedent’s place of legal

residence.

182. Appropriate modifications could be made in other sections, such as section 3-

101, to confirm this definition in specific contexts.

183.

NIF

. P

ROBATE

ODE

§ 3-706 (1998) (“[A] personal representative . . . shall

prepare and file or mail an inventory of property owned by the decedent [(including

electronic mail messages of the decedent maintained on a third party’s server)] . . . .”)

(proposed language in brackets).

184.

NIF

. P

ROBATE

ODE

§ 3-709 (1998) (“The personal representative shall pay

taxes on, and take all steps reasonably necessary for the management, protection and

preservation of, the estate in his possession. He may maintain an action to recover

possession of property [(including electronic mail messages of the decedent main-

tained on a third party’s server)] or to determine the title thereto.”) (proposed lan-

guage in brackets).

185.

NIF

. P

ROBATE

ODE

§ 3-711 (1998) (“[A] personal representative has the

same power over the title to property of the estate [(including title to electronic mail

messages of the decedent maintained on a third party’s server)] that an absolute owner

would have . . . .”) (proposed language in brackets).

186.

NIF

. P

ROBATE

ODE

§ 3-814 (1998) (“If any assets of the estate [(including

the contents of an e-mail account)] are encumbered . . . the personal representative

may pay the encumbrance . . . if it appears to be for the best interest of the estate.”)

(proposed language in brackets).

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320 LEGISLATION AND PUBLIC POLICY [Vol. 10:281

the uncertainty surrounding the legal status of e-mail cannot be ig-

nored. Countless e-mail messages are sent annually by employees and

individuals. The use of wireless devices to send e-mails will certainly

add to the equation. Many of these e-mail messages will have poten-

tial economic value to the author and her heirs. A financial planner

and estate planner should consider their value as part of the owner’s

net worth and estate value. The status of the author would be relevant;

e-mails from a celebrity, for example, might take on a special value.

187

Because personal e-mail messages are the property of the author,

an ethical question arises relative to the author’s intent as to their dis-

tribution upon death. Are the author’s interests compromised by a

standard privacy policy that applies to millions of e-mail users? So

long as there are other providers with more favorable policies readily

available,

188

one could argue the author had a choice to subscribe to

the provider allowing the next of kin to access the e-mails upon her

death. Authors should be held to a reasonable standard of responsibil-

ity in seeking out the most suitable service provider.

Ultimately, one must ask whether the laissez-faire system cur-

rently in effect with respect to e-mail ownership provides sufficient

certainty and structure for the smooth functioning of what has become

the predominant mode of communication. If the experiences of Nancy

Carter and Justin Ellsworth are any indication, the answer is no. The

importance, volume, and ubiquity of e-mail in the modern world make

the topic worthy of immediate legislative attention. The reality of the

enormous global use of e-mail messages with real or potential value

demands a clear legal policy regarding ownership—both during and

after the author’s life.

187. The word “celebrity” here is used in a broad sense. Just as Tom Brokaw might

have examined the letters of ordinary soldiers as he prepared to write his book, “The

Greatest Generation,” future authors may very well be examining e-mails from ordi-

nary citizens rather than their paper and pen letters. See

ROKAW

, T

REAT-

EST

ENERATION

(1998) (telling stories of ordinary American soldiers who came of

age during the 1930’s and 1940’s).

188. See supra note 71 and accompanying text.