"several theoretical views support the position that in life one has strong economic and non-economic claims for control over oneís intangible creations. Yet, the paper finds that historical and literary theory in conjunction with recent economic arguments of Professors Brett Frischmann and Mark Lemley regarding positive externalities generated by access to ideas and information, militate in favor of limits on heirsí control over these creations. Furthermore, insofar as society provides the building blocks from which these creations arise, all the theories show that creations must at some point become part of the commons to enable others to generate new creations. Thus the paper argues against the growth of trademark or trademark-like authorís rights which have no temporal limit and offer heirs extreme control over access to and use of an authorís work and seeks to balance the interests of creators with societyís interest in fostering later expression and creation of new works."
Desai, Deven R., Property, Persona, and Publicity (August 21, 2007). TJSL Legal Studies Research Paper No. 1008541. Available at SSRN: http://ssrn.com/abstract=1008541
"As more of our personal lives go digital, family members, estate attorneys and online service providers are increasingly grappling with what happens to those information bits when their owners die. Sometimes, the question involves email sitting on a distant server; other times, it's about the photos or financial records stored on a password-protected computer. Recently, a Michigan man publicised his struggle to access the Yahoo email account belonging to his son, Marine Lance-corporal Justin M. Ellsworth (2U), who was killed on November 13 in Iraq. Though Yahoo's policies state that accounts 'terminate upon your death', John Ellsworth said his son would have wanted to give him access.'He was wanting to forward his email from strangers,' Mr Ellsworth said. 'They were letters of encouragement. He said all their support kept him motivated. We've talked back and forth about how we were going to print them out and put them in a scrapbook.'To release those messages in such circumstances, Yahoo said, would violate the privacy rights of the deceased and those with whom they had corresponded.'The commitment we've made to every person who signs-ups for a Yahoo! Mail account is to treat their email as a private communication and to treat the content of their messages as confidential,' spokeswoman Mary Osako said in a statement. Other service providers, including America Online, EarthLink and Microsoft, which runs Hotmail have provisions for transferring accounts on proof of death and identity as next of kin. AOL spokesman Nicholas Graham said the company received dozens of such requests a day and had a full-time service representative devoted to meeting requests. Nonetheless, some privacy advocates question whether that's a good approach.'People might decide what they want family members to see or keep secret sometimes for family harmony reasons,' Peter Swire, an Ohio State University law professor, said.'They may know secrets of other family members that they hold in confidence: the sister had an abortion; the father had a first marriage.'Prof Swire said Yahoo's policies were stricter than those for medical records - and rightly so. He said quick access to medical records was needed for emergency care, and such records were unlikely to trample other people's privacy rights, as email could. Rather than maintaining an either/or policy, perhaps service providers could ask users when they signed up whether they would like email disclosed upon death, Jason Catlett, president of the privacy-rights group Junkbusters Corp, said. But Mr Graham said cellphone providers and fitness centres did not make similar requests, and doing so with Internet service 'is simply a turn-off and it's not necessary. We already have a process that works quite well.'For now, such disputes are rare, and most struggles for access involve family members who need to obtain financial records on a computer, Bob Weiss, president of Password Crackers Inc, a Maryland company that recovers lost passwords, said. Less than 2% of his business involved relatives of the deceased. The easiest approach, Internet scholars say, is simply to leave behind a password.'I think this [Yahoo] case will be helpful to people who are thinking about issues not only of inheritance but planning,' Jonathan Ezor, a professor of law and technology at Touro Law Centre in Huntington, New York, said.'When one family member tells another where the important paperwork is, the will, safe deposit box key, etc, the list of passwords is going to be added to that."
(Anick Jesdanun, Associated Press, New York)