E(-)state Planning: What Happens to Kindle Books When You Die?

I woke up wondering “what happens to your Kindle books when you die?” Though not an urgent question, it’s relevant considering I live in a Kindle-converting household. The ownership of the 1,000+ paper books in the house will be pretty clear when I die, but what about my Kindle books?

Based on a Google search, I’ve found two related arguments:

  1. Kindle books are licensed to you and the license expires when you die.
  2. Kindle books are licensed to your account, which can theoretically continue after you die.
Next I went back and read the actual current Kindle terms of use. It’s refreshingly brief. As was pointed out by the referenced sources, there are two relevant passages under “Digital Content”:
the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Other Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Digital Content is licensed, not sold, to you by the Content Provider.
you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Digital Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Digital Content.

I’m not even slightly a lawyer, but my take on this is that the letter of the agreement indicates you can’t bequeath your Kindle content in your will, as that would fall into the “otherwise assign” category.

However, having seen some of the tricks lawyers are able to pull, and wanting to sympathize with the second “account” interpretation, I have to ask, when they say “grants you a non-exclusive right,” who do they mean by “you?” And, important to this discussion, does “you” extend beyond your physical presence into your electronic presence? Because imagine this scenario: You own two Kindles. You sync both Kindles to your account and download two “copies” of the same book. You hand one of your Kindles to someone and say, “hey, read this, and let’s talk about it.” They take your Kindle home with them for a few weeks. When they’re done, they hand your Kindle back to you. In that transaction, you didn’t “sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights.” But someone else was able to read a book from your account, outside your presence, seemingly without violating the license agreement. In court, the counter-argument might be that this somehow served to “bypass, modify, defeat, or circumvent security features.” But would a jury buy that?

Assuming you think handing someone your Kindle isn’t breach of contract, let’s take the next step. What if you leave your physical Kindle to someone in your will? No problem there. The device is property. What if you take another step and leave them the device, still activated, and include an envelope containing your Amazon account username and password? Easy enough to do. But what are the implications? Is this materially different from the first scenario, the loaning of an activated Kindle? Perhaps in intent, but let’s set that aside from a moment.

At least initially, your heir needs to take no action to continue reading “your” books. You’ve given them a device which has access to the content licensed to “you.” As anyone who has gone through a probate knows, the concept of person-hood does not completely disintegrate after death. I’ve received and cashed checks in the name of a dead person up to four years after first standing at her occupied grave. Granted, there was some assignment of rights making that possible. But it’s not uncommon for us to act upon the wishes of the dead, written and unwritten, spoken and unspoken, for years after they die. They’re still a person, and we’re still taking actions on their behalf. This is totally accepted in our culture and our legal system.

So let’s get back to the Kindle. You have a physical Kindle you now own, with an account “loaned” to you by a dead person. So far, you (the heir) have taken no action different from borrowing an activated Kindle. You might not have to take any action for several years. Probably you should log into the account and change the notification email address, remove any credit cards, cancel subscriptions, etc. This is, in fact, what the executor of the estate would be expected to do. Would the executor be required to close or delete the account if it were rendered incapable of incurring new charges? Probably not–their job is primarily to settle financial claims.

So let’s say the account is changed in such a way that it can be maintained in perpetuity without further input. That Kindle should have access to that content “forever.” But what happens when the physical Kindle dies? Does buying a new Kindle and assigning it to the dead person’s account (or connecting Cloud Reader to that account) constitute an effort to “bypass, modify, defeat, or circumvent security?” I’d still argue no. All security inherent in the system is still present. The DRM on the files in intact; the account has a password. They didn’t say you may not “bypass, modify, defeat, or circumvent” the license.

What surprised me in all of this is that Amazon hasn’t been more explicit about what happens when an account holder dies. I’d guess this is because reminding customers of their mortality is bad marketing, but also because it probably hasn’t come up very often, and almost certainly hasn’t ended up in court. I’m betting there will eventually be a clarification on this one way or another. Until then, I’d say make sure your Amazon account credentials are in your estate planning package.