Additional comments on the Fatal Flaw in Data Storage

From the comments, it looks to me like I need to be a little more specific in my explanation of the fatal flaw in online data storage. The initial question is whether or not the online data constitutes "property" in the legal sense? I would be of the opinion that it certainly does. Although they are incorporeal, the online documents consist of work product and are undoubtedly, except for the facts and data, subject to copyright claims. This is not to say, that the online data has any monetary value. The value may be a historical, sentimental or emotional but there is still a value. In some cases, the online data may actually have a monetary value. This would be especially true if the owner of the material at any degree of public notoriety. For example, a famous author's writings stored online may very well have a significant value.

If we accept the fact that the data stored online has value, then, as far as the law is concerned, the data could be transferred, sold or disposed of by will or devise.

The focus of the comments I received were on the mechanical aspects of maintaining the data online. For example one suggestion included a reference to a company that would agree to maintain the data for a specified period of time up to and including 30 years. However, the physical preservation of the data is only one aspect of data storage. In fact, there are alternatives to the data preservation problem if the data is stored on an archive that is committed to preserving the data in perpetuity. There are of course more reasonable methods of preserving large amounts of data, including publishing the entire corpus. Tragically, I regularly hear of genealogists who pass away and whose life's work is summarily disposed of in the nearest dumpster. I heard one such story this week.

The problem is not that there is a lack of method to preserve the data, the real issue is that the individuals who become the subsequent owners of the data have no appreciation of its importance and are unwilling to expand the time and effort and perhaps money necessary to preserve the data. So the fatal flaw of online data storage is not that there cannot be arranged some commercial enterprise or free archive where the work could be stored indefinitely, the real issue is the resolve of those who become the subsequent owners of the data/property.

Part of the problem stems from the fact that the law in the United States has yet to address the issues of the succession in interest to incorporeal property. You might suggest that I use the term "intellectual property" however that term applies primarily to issues involving the ownership of copyright or other statutory property interests such as trademarks. Although, as I mentioned there may be copyright interests involved in the situation, this is not the main thrust of the problem. I foresee a problem because of the lack of a standardized way by which online incorporeal property can be disposed of properly and given to individuals who will appreciate its value.

So the fatal flaw in online data storage is not a programming, engineering, business organization, or contract issue, it is primarily an issue arising out of the lack of legal mechanisms for her properly transmitting the data. In a previous post I referred to the fact that some online service providers, in their terms of use, flatly state that they would require a court order to release the information which they hold. This of course assumes that the provider has not summarily erased the property from its storage drives. From my perspective, the really serious issue is the fact that most current estate plans do not include provisions for disposition of the deceased's online data. The results of these omissions is that the mere existence of the online data may frustrate the entire estate plan by requiring the heirs to go to court, even though a trust has been created to prevent that eventuality.

For example, let's suppose that you contracted with a provider to archive your accumulated data for 30 years. What happens at the end of 30 years? You see, any such arrangement merely postpones the inevitable determination of the disposition of the data. This of course is absent a disposition that lasts in perpetuity. But even if the data were In a perpetual account there would still be legal disposition issues that may require probate. Postponing the disposition of the property in an online storage facility for a period of time, such as 30 years, moves the issue of the disposition of the property from those who should be the most interested and concerned about the data to another generation or two that may have even less interest in preserving the property.

Unfortunately, there is no present solution to this problem. The flaw exists. Until the law catches up with technology the issues will continue to exist. From a practical standpoint, in a probate action the heirs can simply agree and summarily dispose of any property in the estate. One point that is perhaps not obvious is that upon death all of the property interests owned by an individual pass immediately and automatically to the individual's estate. The estate becomes the owner of the property. Probate is the process of transferring ownership from the estate to the heirs or devisees. Heirs inherit property by right of relationship. Devisees obtain property by gift or transfer. This is an immensely complicated subject which to a great extent it has been entirely ignored by those providing online storage services.