Property rights in virtual things: digital files revisited

In this paper, we develop a proposal for an in rem property right in digital files by analogy to things in possession. Under our proposal, English law would recognise a control-based title to digital files, backed by a remedy for return or damages that protects a computer user’s control of a digital file from third-party interference. This would subject third parties to a duty not to interfere with another person's control of a digital file deliberately, such as by editing or deleting the file. This duty would arise whenever a third party had sufficient notice of another computer user’s exclusive claim to the file. By contrast, this duty would not be breached by acts which did not interfere with another user’s control of a file, such as merely accessing or copying the information a file contained. In this manner, the law can achieve an appropriate balance between competing interests in digital files.