Many people have a great deal of digital content stored “in the cloud”, often through email, social media platforms, file storage and other related services. Whether it is the storage of user-created content, such as photos, videos or documents, or content that users pay to access, such as music and e-books, the use of such services is governed by the Terms of Service (“ToS”)[1] of the relevant company (“online service provider”).  

Despite the often monetary or emotional value of such user-created content, ToS tend to be contracts of adhesion; if a person wants to use an online service provider, they generally have no option but to agree to that online service provider’s ToS. As ToS are almost always unilaterally-generated contracts where the individual has no negotiating power vis-à-vis the online service provider, the reality is that most people usually accept ToS without actually reading them. As a result, many are unaware of how the ToS affect their rights to the accounts with these service providers and the content stored in association with them, or the rights their heirs might have in this regard after they die.[2] This is particularly the case for an individual’s copyright with respect to the content that they create through or store with the online service provider.