ABSTRACT
In this paper, we explore whether English law can develop an in rem property right in digital files by analogy to the rules that govern things in possession. We argue that the law can recognise a control-based relative title to digital files, backed by a remedy for return or damages in case of third-party interference. Doing so can protect each person’s control of their digital files, which serve as containers of valuable personal and commercial information. Yet it would also impact third parties, who would become subject to a duty of non-interference with digital files and potential liability for damages under the torts of trespass and conversion. Nonetheless, English law can also apply existing rules on freedom of contract, vicarious possession, abandonment, and involuntary bailment to digital files by analogy. This can help the law achieve an appropriate balance between the competing interests in digital files.
Michels, Johan David and Millard, Christopher, Property Rights in Virtual Things: Digital Files, Revisited (February 1, 2016).
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