Digital coins have burst into mainstream awareness recently, mainly as a result of high-worth ‘Initial Coin Offerings’ (‘ICOs’). The most immediate question in the legal treatment of digital coins is whether they are properly seen as digital ‘commodities’, and/or as ‘securities’, and/or as units of ‘money’. But the conceptual underpinnings of these categories are not clear, nor is it clear how these categories relate to each other; no legal system currently deals adequately with incorporeal objects as objects of property law. This category includes not only digital coins but also some forms of conventional money and securities. Establishing a satisfactory account of their treatment in property law is therefore a necessary first step to incorporating digital coins into private law theory. I argue that this task is best approached on the basis of a plausible ontology of incorporeal objects, including those embodied in paper (i.e. banknotes and conventional securities) and those that exist natively in ‘cyberspace’ (i.e. electronic ‘book-money’, modern securities, and now digital coins). We therefore urgently need to develop a plausible account of a how packets of data can be treated as an object of property rights. Using a comparative analysis of English law and Civilian law (particularly German) concepts of property as an entry point into this complex of problems, I explore the ontology of incorporeal objects and the role of documentation in their creation and maintenance as part of the ‘ontic furniture’ of our economic world. I explore the conceptual basis of property in digital coins in terms of a new category of property. Such a category is long overdue and will be increasingly important in the future.
The usual disclaimer applies—all errors are my own. All translations my own unless otherwise noticed. All URLs last accessed 4 March 2019.
I thank the Alexander von Humboldt Foundation for its financial support. Thanks to Ross Buckley and to King & Wood Mallesons (Sydney) who hosted a seminar based on this paper on 27 February 2018, and to Andrew Haynes and the participants at the conference Current Developments in the Law and Regulation of Banking (Institute of Advanced Legal Studies London, 8 March 2018). Thanks to Barry Smith, Tony Lawson, David Fox, Charles Proctor, Lionel Smith, Gerhard Dannemann, Will Bateman, and Eva Micheler, and the Journal’s reviewers for their comments on the draft. I am indebted to Przemek Palka for our discussion of his PhD thesis on virtual property, from which I have adopted the terminology of res digitales in the final version, and to Christian von Bar for our discussions and his comments on the draft.
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