Possessing Intangibles

53 Pages Posted: 27 Apr 2021 Last revised: 8 Nov 2021

See all articles by João Marinotti

João Marinotti

Indiana University Maurer School of Law; Center for Intellectual Property Research, Indiana University Maurer School of Law; Information Society Project, Yale Law School

Date Written: 2021

Abstract

The concept of possession is currently viewed as simply inapplicable to intangible assets, whether data, bitcoins, or NFTs. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article clarifies possession’s crucial purpose in property by distinguishing it from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. Possession conveys to third parties the allocation of property rights and their related duties. As such, possession builds upon the concept of thinghood; it is a subsequent analytical step through which the law can normatively and efficiently expect individuals to comply with their duty to not interfere with the property of others. Given its centrality, then, possession should not be so quickly discarded in the context of intangibles.

The Article dissects the relationship between property, possession, and thinghood, deriving a new tech-neutral theoretical model of possession grounded in information theory. By unpacking the process through which the social institution of property emerges, this Article provides the rationale for this analysis of possession. It also highlights the importance of distributed, accessible information. Clearly conveying the allocation of rights and duties is critical for the success of any resource governance regime, digital or otherwise.

Ultimately, property law relies on possession’s communicative function to ensure that the enforcement of rights and duties is fair and expected. The analysis of possession proposed in this piece provides a robust and coherent way for property law to retain these same benefits in the age of digital and crypto-assets.

Keywords: Property, Property Law, Possession, Intangible, NFT, Crypto, Ownership

JEL Classification: K11

Suggested Citation

Marinotti, João, Possessing Intangibles (2021). Northwestern University Law Review, Vol. 116, 2022, Indiana Legal Studies Research Paper No. 447, Available at SSRN: https://ssrn.com/abstract=3834643 or http://dx.doi.org/10.2139/ssrn.3834643

João Marinotti (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Office #247
Bloomington, IN 47405
United States

HOME PAGE: http://law.indiana.edu/about/people/details/marinotti-joão.html

Center for Intellectual Property Research, Indiana University Maurer School of Law ( email )

211 South Indiana Avenue
Bloomington, IN 47405
United States

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://law.yale.edu/joao-marinotti

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