Data Objects: New Things or No-Thing More Than Ignis Fatuus

Abstract

English academics have belatedly awoken to the challenge to the law posed by the computer revolution that started in the late twentieth century. Inspired by American jurisprudence, technophile lawyers unfamiliar with the complexities of conceptualising property liberally propose to extend property law concepts to digital files, including a recent attempt to do so by postulating a three-layer model of digital files to enable ‘ownership’ at the logical layer. Meanwhile, American academics, facing some resistance in the courts, have continued to propound the case for data property. This paper exposes the many dangers of the concept of property within the common law, the failures of recent proposals on both sides of the Atlantic to address the underlying technical workings of computing, and the perils that such ill-considered extensions of property will pose to legal development.

Keywords: property law, digital files, virtual objects, tort of conversion

JEL Classification: K11