Getting Possessive About Data: Why Cloud Storage Isn't Really Like Bailment

Abstract

This essay engages with recent scholarly suggestions that the traditional property categories of possession, bailment, and conversion can and should be applied in a fairly straightforward manner to storage of digital data. On the one hand, I am sympathetic to the concerns underlying these proposals, and agree that digital files meet the basic criteria of "thingness" that could make them intelligible as objects of property rights. While intangibility is not a per se disqualifier in this regard, I nevertheless contend that here the absence of exclusivity as a prerequisite to use of data files causes the animating logic of possession-based doctrines to unravel. 

Keywords: bailment, digital data, in personam, in rem, intangible property, data storage, cloud commuting

JEL Classification: K1, K11, K19, K2, K24