Tuesday, November 9, 2010

The Ellsworth Case with Yahoo!

I will continue with part three in my series on digital assets with a discussion of the Estate of Justin M. Ellsworth and his family's troubles with his Yahoo! email account.

The case easily illustrates the complexity of dealing with e-mail accounts. The 2005 Michigan probate was the estate of a marine Justin Ellsworth, who was killed in Iraq. Mr. Ellsworth's parents sought to recover the contents of their son's Yahoo! e-mail account. Yahoo refused Justin's parents' request based upon its Terms of Service (TOS) which indicate that a Yahoo! account is non-transferable and terminates at death.

Yahoo's terms of service:
No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

Yahoo argued that they needed to enforce the privacy rights of their account holders. Elsewhere in the terms of service, Yahoo indicated certain instances upon which it could release private information.

Yahoo's terms of service
You acknowledge, consent and agree that Yahoo! may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Yahoo!, its users and the public.

Justin's parents were able to obtain an order from the Oakland County Michigan probate court ordering Yahoo to turn over the emails in the account. Yahoo complied with the court order, although the account password itself was never provided to the estate. Instead, Yahoo produced a CD containing the emails and indicated that it would also produce paper copies to the family.

The case brings a number of important questions to light. What exactly is the actual property owned by the estate? Is it the underlying source code? Is it the writings of the account holder? What about writings other people wrote to the account holder? What about the privacy rights and copyright rights of email senders and recipients?

With respect to copyright issues, the estate certainly had copyright in the emails composed by Justin Ellsworth and possibly implied consent for use of those emails received by Justin Ellsworth. It is important to note that Yahoo never made a claim of ownership over the emails in Justin Ellsworth's account. In fact, their TOS explicitly rejects this.

Yahoo's TOS:
Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services

Even if an estate has a copyright in the material contained in an email, the estate may not necessarily have the right to access the information. It can be argued, and Yahoo did argue, that the contractual rights in Yahoo's TOS trump the estate's copyright. In other words, they limit the family's access to the copy of the copyrighted materials. Their argument can be simplified by saying that they are merely a holder of the email content and the right of access to the content disappears upon the death of the account holder. The Yahoo account was governed by contract law and, by accepting the terms of service, Justin agreed that his account was not transferable.

The case raises many questions and provides few answers. Nonetheless, it is clear that the law will not have ready made answers to the questions raised by technology related or virtual assets.

Click here for part two of this series
Click here for part four of this series

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