João Marinotti, ‘Possessing (Digital) Property’

ABSTRACT
The concept of possession is currently viewed as inapplicable to intangible assets, whether data, bitcoins, or NFTs. This Article disrupts such blanket designations, providing an alternate and robust theory to determine whether possession and property law apply to intangibles. In so doing, the Article clarifies possession’s role in property law by distinguishing it from another foundational concept, that of thinghood. It highlights possession’s unique and singular purpose within the property process: conveying the status of in rem claims. It informs third parties of the allocation of property rights and their related duties. As such, possession builds upon the concept of thinghood; it is a subsequent analytical step and serves as a means through which the law can normatively and efficiently expect individuals to comply with their duty to not interfere with the property of others.

This Article further illuminates the relationship between possession and thinghood by proposing a new theoretical model of possession grounded in information theory and lays the foundations for a robust understanding of the property process, one that does not give up in the face of intangible assets.

The law relies on possession’s communicative function to ensure that its enforcement of rights and duties is expected, creating a stable foundation to allocate ownership, facilitate social interaction, and ultimately function as the foundation for the rest of private law.

These insights provide property law not only with a theoretically coherent analysis of possession but also with a robust mechanism to address property rights in the digital (and crypto) realm. It also highlights the importance of distributed, accessible information – clearly conveying the allocation of rights and duties – for the success of any resource governance regime, digital or otherwise.

Marinotti, João, Possessing (Digital) Property (2021). Indiana Legal Studies Research Paper No 447.

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