The Digital Inheritance of Mobile Apps: Where’s the App for That?

Digital inheritance laws relating to mobile applications are largely unsettled as courts and legislatures grapple with how to treat new types of digital property. As developers of mobile applications pass away, many revenue-producing applications may become ownerless, which would remove the benefit to both developers’ heirs and to the public user base. Moreover, successors with motives and skills not aligned with those of the original developers may prove to be harmful to the financial viability and character of an otherwise profitable app. Currently, successors view profitable mobile applications left by deceased developers as meal tickets and nothing more. This can lead to the deterioration of an otherwise useful mobile application. In order to protect the intellectual property rights of developers, as well as preserve economic benefit for both individual developers and their users, courts should not allow digital inheritance of mobile applications. Most commentators on digital inheritance analyze digital assets like online music libraries, which are obtained but not created by an individual. Mobile applications present a different type of digital property that requires developers to exercise independent, original creation, which results in a product that is then obtained by other users. For this reason, developers’ rights should be respected in the same way as authors of other original works. This note argues that in order to encourage developers to legitimately transfer ownership of a mobile application to a valid successor, courts should disallow for the inheritance of mobile applications in intestate scenarios. By denying access to potential successors, courts can signal to developers to protect their valuable assets after death. For developers who fail to include mobile applications in their estate, the worst case scenario is that a mobile application becomes obsolete. By denying access to potential successors, courts would incentivize developers to take active steps to prevent the deprecation of their mobile applications. * J.D. Candidate, Northwestern University Pritzker School of Law, 2016; B.A., University of California, Los Angeles, 2010. I would like to thank Olga Voronina for her thoughtful contributions and feedback. I would also like to say a special thank you to my mother, Leilani Morales Cruz, who has provided unconditional and unwavering support, and has always reminded me to advance my intellectual curiosity. N O R T H WE S T E R N J O U R N AL O F T E C H N O L O G Y A N D I N T E L L E C T U A L P R O P E R TY [ 2 0 1 6 112 TABLE OF CONTENTS Introduction 113 I. Digital Inheritance of Intellectual Property 114 A. The Intersection of Estate and Intellectual Property Law 114 B. Mobile Apps: A Unique Type of Digital Assets 115 1. Pure End-Users of Digital Media 115 2. App Developers as Both End-Users and Providers Themselves 117 C. Profitability of Mobile Apps 117 II. Insufficiency Of Existing Digital Inheritance Law 118 A. The Inadequacy of Statutory Contemplation of Mobile Apps 118 1. Traditional Probate Statutes 118 2. The Role of Federal Copyright Law 118 3. Statutes Specifically Addressing Digital Assets 119 4. Digital Estate Planning Services 123 B. The Active Developer Requirement 124 C. The Willingness of Courts to Grant Access 125 D. The Increasing Importance for Developers to Plan Ahead 126 III. Courts Should Deny Access To Successors 126 A. Encourages Developers to Plan Ahead 126 B. Developer Intent Should Be Respected 127 C. A Clean Mechanism for Transferring Apps 128 D. Costs of Proposed Solution 128 E. A Workable Rule 128 Conclusion 129 Vol. 14:1] Edwin Cruz