Capturing Intangibles in a Property Restatement

ABSTRACT:

The field of property law is often viewed as a "grab bag" of loosely related topics, whose doctrines are treated as a heap of rules, and whose subject matter is in turn conceptualized as a "bundle of sticks" having more or less arbitrary contents. One of the goals of the Restatement (Fourth) of Property is to present property doctrine as a coherent system of principles and doctrines that addresses recurring problems of resource allocation, control, and use across a variety of different contexts. When technology intersects with law in the Restatement process, it puts into issue some basic notions in property and even their very nature. This paper analyzes the notions of possession, thing, and conversion in the light of valued intangible resources. The range of intangibles, from cryptoassets to data files, are different in terms of the nexus of human activity that they present and the social legibility of such activity. Attention to the architecture of property and its function as a system helps manage the tradeoffs involved in property protection in the area of intangibles.