Preface
In Chapter 5 of my book “Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age” I discussed what I called the property problem and whether a digital file could amount to property. My main argument against such a proposition was based upon technological realities – digital material was paradigmatically different from earlier items or forms that could amount to property. It was a difficult position to sustain, especially in light of the decision of the New Zealand Supreme Court in Dixon v R.
I considered that the property problem was a true collision in the digital paradigm – a collision between accepted theory which had incrementally developed over the years and which had developed defining characteristics for items of property, and the technological realities of digital data.
Furthermore, the particular collision in the digital paradigm is that, with so much information being digitised – and important information at that – it may well be that current remedies for breach of confidence, copyright infringement and the like do not provide a sufficient remedy nor deterrent particularly when the behaviour is accompanied by clear instances of dishonesty associated with the appropriation of information which can be converted into something of value. The difficulty is, as was observed in the case of Your Response Limited v Data Team Business Media Limited that the law of unintended consequences may come into play.
My view at the time was that the confluence of data on the one hand with information on the other placed the law in an invidious position. Data or electromagnetic impulses scattered across a medium could not be property although the “merger theory” utilised by US Courts seemed to provide a possible solution. I concluded Chapter 5 with the following observation
“The issue of virtual property remains an open question and much depends upon the nature of the terms and conditions that exist between the provider and the customer. It may be that legislation will address this problem in the future, recognising that in a paradigm of continuing disruptive change, changes to perceptions of whether what may fall within the category of intangibles may have value needs to be recognised along with a further recognition that existing remedies under “traditional” fields of law such as intellectual property and breach of confidence may be too limited to accord sufficient protection. The concept of no property in pure information could remain. Information that is not associated with a medium could remain as intangible. But the digital file associated with a medium would have a level of tangibility sufficient to attract the protection of the civil and criminal law.”
The cases discussed in this paper seem to provide the pathway that I tentatively identified. Hence the title “Digital Property Revisited”.
.
Introduction
The Digital Paradigm poses challenges to existing legal concepts. One particular challenge has been whether or not a digital file may be considered property for legal purposes.
Recently the issue has been highlighted by cases involving two important property based issues. The first is whether or not a digital file – in the particular case the contents of a computer including emails – may be property for the purposes of conversion
The second is whether a cryptocurrency such as bitcoin can be property.
The “Property” Issue
Can computer files be property for the purposes of the exercise of a possessory lien or amount to property to sustain an action for conversion? There are diverging lines of authority. The English position is based upon the theory that computer files comprise information and that there can be no property in information.[1] The issue then becomes further complicated by the distinction between choses in possession and choses in action
The English Approach
In the case of OBG v Allen[2] the House of Lords held that wrongful interference with contractual rights could not constitute the tort of conversion because the tort applied only to chattels and not to choses in action.
The position was articulated by Lord Hoffman who pointed out that historically conversion was a tort against a person’s interest in a chattel and expressed the view[3] that the whole of the statutory modification of the law of conversion had proceeded on the assumption that the tort applies only to chattels.
Although it was suggested by Lord Nicholls and Lady Hale that the tort of conversion should be extended to cover the appropriation of things in action Lord Brown rejected that proposition on the grounds that it would sever the link between the tort of conversion and the wrongful taking of physical possession of property.
OBG v Allan makes clear the sharp distinction in the common law between tangible and intangible property. The issue of tangibility is an important one in considering whether there may be a property right in information. Information in and of itself has no tangibility at all. Information incorporated into a document is associated with a medium and in such a situation conversion could apply but it relates to the medium – the document – thereby creating an unlawful interference with a physical object to which a commercial value can be attached. In contrast to chattels, choses in action are intangible things and incapable of the physical possession necessary to support a claim for conversion.
In England the case of Your Response Limited v Data Team Business Media Limited[4] developed the issue.
Rather than being considered within the context of a remedy for conversion the issue was whether or not a possessory lien could apply to a data base. Data Team Business Media Limited carried on business as a data base manager. It offered customers the service of holding electronic data basis and amending them as required in order to ensure that the information contained was up to date. In 2010 Your Response engaged Data Team to hold and maintain its data base of subscribers.
Following non-payment of fees Data Team refused to release the data base or give Your Response access to it until all outstanding fees were paid. In the proceedings that followed the Judge at first instance held that the data manager, Data Team, was entitled to withhold the data until those fees were paid and rejected Your Response’s argument that the exercise of a lien was inconsistent with the terms of the contract and that it was not possible to exercise a lien over intangible property in this case the electronic data.
In his decision the Judge at first instance drew an analogy between information kept in hardcopy in the form of ledgers over which a book keeper could exercise control by means of physical possession and information kept in electronic form over which the data manager could exercise control by electronic means.
The Court of Appeal observed that the Judge had not had his attention drawn to the case of OBG Limited v Allen[5] and went on to consider the nature of a common law possessory lien, observing the possessory aspect of the remedy and the requirement for there to be actual possession of goods, requiring tangibility in contradistinction to a chose in action – essentially personal rights of property which could be claimed or enforced by action and not by taking physical possession.[6]
It was observed[7] that there are indications that information of the kind that makes up a data base – usually but not necessarily maintained in electronic form – if it constitutes property at all – does not constitute property of a kind that is susceptible of possession or of being the subject of the tort of conversion. Under the provisions of the Copyright Designs and Patents Act 1988 (UK) the nature of protection accorded to the makers of data bases by that legislation reflects a recognition that data bases do not represent tangible property of a kind that is capable of forming the subject matter of torts concerned with the interference of possession.
Davis LJ observed[8] that the subtext of the argument on behalf of Data Team was that the courts should not leave the common law possessory lien stuck in its 18th and 19th century origins in developments but should go on to give it a 21st century application. Although that appealed to modernism and had its attractions it should be resisted. Davis LJ observed that although that approach found favour with the minority in OBG v Allen it did not find favour with the majority.
The second point made by Davis LJ was more far reaching. He observed that the law of unintended consequences is no part of the law of England and Wales but it is worth paying attention to it in the appropriate case. He observed that if a common law possessory lien could arise in a case such as Your Response v Data Team it would be a right in rem and not a right in personam.
Furthermore a right to such a possessory lien could have an impact upon creditors of the company and could confer rights in an insolvency which other creditors would not have. In addition the possession of lenders could be affected and, given the number of IT companies and businesses, the impact of Data Team’s arguments, if accepted, could be significant. Davis LJ also observed that if a data base is to be regarded as tangible property it may have implications for other areas of the law altogether for example, the law of theft (as contrasted with the legislation relating to misuse of computers).
Davis LJ’s observations about unintended consequences found favour with Floyd LJ. He made the observation that an electronic data base consists of structured information which may give rise to intellectual property rights but again emphasised that the law had been reluctant to treat information itself as property. He observed that when information is created and recorded there are sharp distinctions between the information itself, the physical medium on which the information is recorded and the rights to which the information gives rise. Whilst the physical medium and the rights are treated as property the information itself never has been and to accept Data Team’s arguments would result in a fundamental change in the law.[9]
I have discussed Your Response in some detail because it is of significance when the position in New Zealand is considered to which I shall now turn.
The New Zealand Approach – Henderson v Walker
The case of Henderson v Walker[10] dealt with a number of issues following upon the liquidation of Property Venture Ltd of whom the Plaintiff was a director. The defendant was the liquidator of the company and other companies in the group. He was instrumental in the Police seeking and obtaining warrants to seize the records of the companies. The actions of the defendant following receipt of a tape drive and a laptop owned by the Company that was the subject of the case. In particular, there were concerns on the part of the plaintiff that the defendant, fuelled by malice, provided his personal information to the Inland Revenue Department, the Official Assignee and other third parties.
There were some six causes of action pleaded but for the purposes of this discussion only one – in conversion – is relevant. The question was whether or not certain computerised information contained in files and emails was property that could sustain an action in conversion.
Thomas J started by considering the traditional position, taking into account three elements
a) Plaintiff must have an immediate right to the goods
b) Defendant’s conduct must be deliberate
c) Defendant’s conduct must be so extensive an encroachment on the plaintiff’s right as to exclude him from use and possession of goods.
There was an assumption that the tort applied to personal tangible property. Possession – which underlies the tort – requires physical control and an intention to exclude. Because intangible property is not physical thus it cannot be physically controlled and therefore possessed.[11]
Your Response Rejected
At first blush it would appear that Your Response Ltd was directly on point and would dictate the outcome. That was not to be. Thomas J considered that much of the reasoning in Your Response was specific to the UK context noting that the NZ Courts are not bound by OBG v Allan and that there is no statute that alters the tort of conversion. On that basis it was open to the Court to depart from the UK position.
Thyroff v Nationwide Mutual Insurance Co
Thomas J then considered the US position, noting that the New York State Court of Appeals[12] had explicitly extended the tort of conversion at cover electronic records. That Court focused upon the so-called “merger doctrine” which the courts had developed to allow claims for the conversion of intangible property where that property was represented by a physical asset, such as a stock certificate.
The Court noted:
The merger rule reflected the concept that intangible property interests could be converted only by exercising dominion over the paper document that represented that interest (see Pierpoint v Hoyt, 260 NY at 29). Now, however, it is customary that stock ownership exclusively exists in electronic format. Because shares of stock can be transferred by mere computer entries, a thief can use a computer to access a person’s financial accounts and transfer the shares to an account controlled by the thief. Similarly, electronic documents and records stored on a computer can also be converted by simply pressing the delete button (cf. Kremen v Cohen, 337 F3d at 1034 [“It would be a curious jurisprudence that turned on the existence of a paper document rather than an electronic one. Torching a company’s file room would then be conversion while hacking into its mainframe and deleting its data would not” (emphasis omitted)]).
Furthermore, it generally is not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value. A manuscript of a novel has the same value whether it is saved in a computer’s memory or printed on paper. So too, the information that Thyroff allegedly stored on his leased computers in the form of electronic records of customer contacts and related data has value to him regardless of whether the format in which the information was stored was tangible or intangible. In the absence of a significant difference in the value of the information, the protections of the law should apply equally to both forms – physical and virtual.
Unsurprisingly, given the direction of the discussion, it was clear that there were no New Zealand authorities on whether conversion extended to intangible property. There were, however, other cases where the issue of whether there was a property interest in a computer file had been considered. Thomas J referred to the case of Dixon v R.[13]
Dixon v R
Dixon centred around the use of a computer system to dishonestly obtain property – a digital file – in breach of section 249(1)(a) of the Crimes Act 1961 (NZ). In that case the Court of Appeal[14] held that a digital file cannot be property for the purposes of the criminal law. This finding depended upon the way in which various definitions contained in the Crimes Act coupled with the nature of the charge were interpreted by the court. The New Zealand Supreme Court reversed the Court of Appeal and adopted a different approach.
The facts of the case were that Mr Dixon had been employed by a security firm in Queenstown. One of the clients of the firm operated a bar in Queenstown and had installed a closed-circuit TV system in the bar. In September 2011 the English rugby team was touring New Zealand as part of the rugby world cup. The captain of the team was a Mr Tindal who had recently married the Queen’s granddaughter. On 11 September 2011 Mr Tindal and several other members of the team visited the bar and there was an incident involving Mr Tindal and a female patron which was recorded on the CCTV system.
Mr Dixon found out about the existence of the footage and asked one of the bar’s receptionists to download it onto a computer that was used at work. This was done under the impression that Mr Dixon required it for legitimate work purposes. The footage was located and saved onto the computer. Mr Dixon accessed the computer, located the relevant file and transferred it onto a USB stick belonging to him.
He then attempted to sell the footage but that proved to be unsuccessful and he posted it on a video sharing site, YouTube, resulting in a storm of publicity both in New Zealand and in the United Kingdom.
At his trial the Judge found that Mr Dixon had done this out of spite and to ensure that no one else would have the opportunity to make any money from the footage. A complaint was laid with the Police and Mr Dixon was charged under s 249(1)(a) of the New Zealand Crimes Act.[15]
The charge against Mr Dixon alleged that he had access to computer system and thereby dishonestly and without claim of right obtained property – the video file. The issue before the court was whether or not that file and digital footage stored on a computer amounted to property as defined in the Crimes Act.
In its discussion the Supreme Court referred to both Your Response Ltd v Datateam Business Media Ltd and Thyroff v Nationwide Mutual Insurance Co, but did not find it necessary to consider either in any detail.
The Court also found it strictly unnecessary to determine whether digital files are intangible property or tangible property. The Court emphasised that the meaning of the word “property” varies with context. The Supreme Court noted
“… we have no doubt that the digital files at issue are property and not simply information. In summary, we consider that the digital files can be identified, have a value and are capable of being transferred to others. They also have a physical presence, albeit one that cannot be detected by means of the unaided senses…”[16]
Ortmann v US
The decision in Dixon was referred to in the case of Ortmann & Ors v United States.[17] In that case consideration was given to the identification of “pathway offences” for the purposes of extradition for what could broadly be described as commercial copyright infringement involving among other things films in digital format.
The Court considered whether Section 240 of the Crimes Act was available as a “pathway offence”. Section 240 creates the offence of obtaining or causing loss by deception. There are four circumstances in which the offence may occur, all of them requiring elements of deception on the part of the perpetrator together with an absence of claim of right.
It was conceded that the element of deception could be made out by virtue of false representations that were contained in emails. The element of obtaining was satisfied by the extended definition of obtaining which included retaining.
For the offence to be complete, property had to be obtained. Gilbert J held that the copyright protected films in digital file format were property and cited as authority the case of Dixon v R[18] – the decision of the Supreme Court.
In this commentator’s respectful view Gilbert J read Dixon more widely than was available to him. Dixon was a case that centred around whether or not a digital file was property for the purposes of section 249 of the Crimes Act. The Supreme Court held that it was. What Gilbert J did was to extend the limited purpose identified by the Supreme Court to encompass section 240, thus widening the applicability of the concept of digital property to other sections of the Crimes Act. However, Ortmann was not considered by Thomas J in Henderson.
Information and Data as Property
Thomas J considered competing academic views on the issue of data as property, leaning towards the view that in a modern society intangible property, such as data, is an increasingly valuable resource that requires legal protection. Tangibility, it is argued, is an arbitrary requirement and that the tort of conversion should be brought up to date with advancements in technology.[19]
The academic opponents of extension of property to data focus upon the issue of possession and how that important element of property could be extended to an intangible. The comment in Your Response that although “it is possible to transfer physical possession of tangible property by simple delivery, it is not possible to deal with intangible property in the same way.”
It is the issue of possession that is significant. Opponents are of the view that the common law should not give total despotic control over anything with economic value. An illustration is that even tangible property does not obtain protection against ephemeral interferences such as visual trespass, and it is the concept of possession that provides the limitation in the case of tangible property.
Thomas J then went on to consider the issue of whether information was property. She acknowledged that information, unlike property, cannot be separated from any person who once possessed it. It is easily acquired, and its free communication is essential to human existence. Furthermore, classifying information as property would undermine all the intricate distinctions and limitations developed by the law of breach of confidence.
Digital Assets
However, Thomas J then developed the concept of digital assets. She said
“However, in my view, it is possible to draw a distinction, as the Supreme Court did in Dixon v R, between information and digital assets. Unlike information, it is possible to apply the concept of possession to digital assets. By digital assets, I mean to include all forms of information stored digitally on an electronic device, such as emails, digital files, digital footage and computer programmes.”[20]
Thomas J then addressed the issue of control in the context of digital assets. Control is an element of possession and may be cognitive control and\or manual control. Physical control is just one aspect of manual control and manual control has within it the elements of excludability and exhaustability.
Something is excludable if others can be excluded from its control, while something is exhaustible if its value can be deprived from others. These criteria fit logically with the basis for conversion because together they enable someone to control property to the detriment of another.[21]
Thomas J considered that digital assets are both excludable and exhaustible. In terms of excludability, digital assets have a material presence in the sense that they physically alter the medium on which they are held, which is illustrated by the fact that hardware only has a finite storage capacity for digital assets, a point the Supreme Court picked up on in Dixon v R.
Physical presence allows others to be excluded from the digital asset, either by physical control of the medium or by password protection, which can be considered analogous to locking-up tangible property with a key.
Conversion requires an extensive encroachment on the possessory rights of the plaintiff, so if exhaustibility is a key component of possession, then it follows that the defendant must in some way deprive the plaintiff of the asset to make out the tort.
This requirement removes any inconsistency between the tort’s application to tangible and digital assets. It also mitigates any policy concerns that extending the tort would inhibit the free exchange of digital information.[22]
Thomas J concluded by observing that it seems obvious that digital assets should be afforded the protection of property law. They have all the characteristics of property and the conceptual difficulties appear to arise predominantly from the historical origins of our law of tangible property. There is a real difference between digital assets and the information they record. Such permanent records of information are already convertible when they take a physical form and it would be arbitrary to base the law on the form of the medium, especially now that digital media has assumed a ubiquitous role in modern life.[23]
Observations
My criticisms of Dixon and my support of the English position in Your Response has been based upon technological realities. Essentially, at its most basic form, digital data is no more nor less that a series of electronic impulses recorded upon a medium that require a complex system of devices to render it into comprehensible form. In such a state – dynamic, alterable and often mercurial in that data changes as a computer is started – it can hardly have the stability required of tangible property.
However, in light of the reasoning in Henderson and particularly Thomas J’s characterisation of digital assets I have reconsidered my position, and have come to a middle way that recognizes technological realities and yet conceptually allows digital material to be property. It is based upon the architecture of a computer file system.
A computer file system consists of a number of layers. At its most fundamental is the physical file system which organizes the data which is scattered about the medium. A second layer, which in some considerations may be optional, is the virtual file system which allows support for multiple concurrent instances of the physical file system. Finally, the logical file system provides the application program interface (API) for file operations and passes requested operations to the layer below for processing. This layer provides file access, directory operations, security and protection.
The logical file system is presented to the user in the form of a directory tree which contains file folders and file names. These are labels defined by the user (or in some cases the device) that allow the system to bring together the scattered data into coherent form. In many operating systems file folders are represented as just that – a folder. File names may be accompanied by an icon which represents the type of file that it might be – a Word document, an Adobe pdf, an image file and so on. These correspond to what Thomas J has described as digital assets.
In my opinion, and adopting Thomas J’s conceptual approach, the logical file system can be viewed in this way. There is a differentiation between a file and the information that it contains. In other words, the file itself in total can be seen as a container – akin to a book or a piece of paper which may contain text or information[24]. One can interfere with the book or paper (putting to one side the differences in physical media between such constructs and a digital storage system) and be interfering with property without interfering with the information that either item contains. The problem with Thomas J’s characterization of “digital assets” is that it fails to make the distinction between the logical file construct on the one hand and the data contained on the other.
Therefore, I concede that a digital file can amount to property within the context of the logical file construct of a digital filing system. The question now becomes one of whether or not that approach applies to all forms of digital files and digital constructs, because digital data is often organized in different ways depending upon its use.
One such difference in organization is in the field of cryptocurrencies, which leads me to consider the case of Ruscoe and Moore v Cryptopia Ltd (In Liquidation)[25]
The Cryptocurrency Issue
Before embarking upon a discussion of Crytopia some remarks by way of introduction need to be made.
The issue of whether or not cryptocurrencies such as Bitcoin can be property has been considered in three cases[26], all of which are mentioned in Cryptopia. What is significant is that the treatment of the issue has been superficial and within the context – as is so often the case – of interlocutory proceedings. Cryptopia is the first case to give a considered analysis of the issue.
Ruscoe and Moore v Cryptopia
Cryptopia – a cryptocurrency trading exchange – went into liquidation after a hack resulted in a loss to the Company of $30 million. The company held cryptocurrencies to a value of $170 million. The issue was the legal nature and status of those digital assets and the potential equitable interests in them.
Cryptoassets Defined
The judge, Gendall J first examined what cryptocurrency was and relied to a considerable degree upon British report of the “UK Jurisdiction Taskforce” entitled Legal Statement on Cryptoassets and Smart Contracts.[27] This report considers broadly the legal status of crypto assets and whether the law treats them as property. The report plays an important role in Gendall J’s decision as it did in the case of AA v Persons Unknown.[28]
Crypto assets arose as a result of a proposal by the pseudonymous Satoshi Nakamoto who proposed a new electronic payment system “based on cryptographic proof instead of trust”, with digital tokens – bitcoins – taking the place of traditional currency. The first bitcoin came into existence in January 2009, not coincidentally at the height of the global banking crisis.
Since then other systems have developed using cryptographic techniques. Most of the applications involve dealing in assets of some sort which are represented digitally in the system. This there is a link between a digital representation and an actual asset. The digital representations are referred to as crypto assets. However, because of the large number of different systems in use and the types of assets represented it is difficult to formulate a precise and all-embracing definition of the term.
In general terms there are common features of crypto assets which, when compared with conventional assets are novel or distinctive.
The starting point is to understand the rules of the system within which the crypto asset exists. Functionally, it is typically represented by a pair of data parameters, one public (in that it is disclosed to all participants in the system or to the world at large) and one private.
The public parameter contains or references encoded information about the asset, such as its ownership, value and transaction history.
The private parameter – the private key – permits transfers or other dealings in the crypto asset to be cryptographically authenticated by digital signature.
Knowledge of the private key confers practical control over the asset; it should therefore be kept secret by the holder. More complex crypto assets may operate with multiple private keys (multisig), with control of the asset shared or divided between the holders.
Dealings in a crypto asset are broadcast to a network of participants and, once confirmed as valid, added to a digital ledger. The main function of the ledger is to keep a reliable history of transactions and so prevent double-spending, i.e. inconsistent transfers of the same crypto asset to different recipients.
The ledger may be distributed and decentralised, that is, shared over the network with no one person having a responsibility for maintaining it, or any right to do so.
A common type of distributed ledger uses a blockchain, which comprises blocks of transactions linked together sequentially, but other models are also in use.
An important feature of some systems is that the rules governing dealings are established by the informal consensus of participants, rather than by contract or in some other legally binding way.
Consensus rules (employing methods such as proof-of-work or proof-of-stake) may also determine which version of the distributed ledger is definitive. The rules are self-enforcing in practice, even if not enforceable in law, because only transactions made in compliance with them and duly entered in the ledger will be accepted by participants as valid.[29]
Thus there are five common characteristics to crypto assets:
- intangibility;
- cryptographic authentication;
- use of a distributed transaction ledger;
- decentralisation; and
- rule by consensus.
Gendall J also considered how Cryptopia operated and its terms and conditions which governed its relationship with its account holders. The, having established the technological and business model issues he went on to consider the legal position.
Legal Issues Arising
The starting point was the power to give directions to the liquidator of the company in relation to any matter arising in the liquidation.[30] There were a number of questions that the liquidator wanted the Court to answer as to the legal status of the Digital Assets. The first and most relevant to this discussion was whether or not they constituted property as defined by s. 2 of the Companies Act.[31]
There were also questions posed as to the nature of the way in which the assets were held for account holders, whether they were in trust and, depending upon the answers to those questions were a number of supplementary questions which arose. However the Court considered the two main issues were
(a) Are cryptocurrencies a type of “property” in terms of the Companies Act and, linked to this, can cryptocurrencies form the subject matter of a trust?
(b) Was Cryptopia, in providing a cryptocurrency storage and exchange service for its customers, a trustee of the currency brought onto the exchange by accountholders and held by it?
The account holders argued that cryptocurrencies must be seen as a form of intangible personal property both at common law and within the definition contained in s 2 of the Companies Act. The liquidators and the creditors disagreed with this. The creditors also contended that cryptocurrencies are not property capable of forming the subject matter of a trust at common law. Alternatively even if they are not property they are capable of forming the subject matter of a trust.[32]
It was contended for the account holders that any finding by the Court that cryptocurrencies are not property would have profound and unsatisfactory implications for the law in New Zealand including in particular insolvency law, succession law, the law of restitution and commercial law more generally. It was also contended that this was a matter for the Court to decide rather than be left to Parliament as argued by the creditors.
The Importance of the Property Issue
The Judge considered why it mattered that a cryptocurrency was property. He referred to a text which stated:
“Property is a gateway to many standard forms of transactions. A crypto-coin can never become the subject matter of a trust or a proprietary right of security, nor will it be an asset in a deceased’s person’s estate, unless it is first recognised as an object of property. The same is true of a secured creditor or trust beneficiary enforcing their claim in property to the unsecured creditors of an insolvent coin-holder. The development of a viable cryptocurrencies derivative market may sometimes require that the primary assets from which secondary claims are constructed are capable of legal recognition as property.”[33]
He then turned to the approach set out on the Legal Statement on Cryptoassets and Smart Contracts and concluded that the cryptocurrencies here situated in Cryptopia’s exchange are a species of intangible personal property and clearly an identifiable thing of value. Without question they are capable of being the subject matter of a trust.[34]
The starting point was that the Courts in New Zealand had accepted that the definition of property was a wide one, and after a brief reference to the case of National Provincial Bank Ltd v Ainsworth[35] where Lord Wilberforce set out the four characteristics of property[36] (and to which he would later return) he went on to consider other cases involving the issue of cryptocurrencies as property.
Other Cases on Cryptocurrencies
B2C2 Ltd v Quoine Pte Ltd
The first case to which Gendall J referred was that of B2C2 Ltd v Quoine Pte Ltd (Singapore)[37] In that case Quoine had conceded that Bitcoin was a species of “property” but it did not concede that there was any trust. Thorley IJ considered that the concession on the “property” point was rightly made and in his judgment his Honour stated
“Cryptocurrencies are not legal tender in the sense of being a regulated currency issued by government but do have the fundamental characteristic of intangible property as being an identifiable thing of value. Quoine drew my attention to the classic definition of a property right in the House of Lords decision of National Provincial Bank v Ainsworth [1965] 1 AC 1175 (HL) at 1248:
…it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.
Cryptocurrencies meet all these requirements. Whilst there may be some academic debate as to the precise nature of the property right, in the light of the fact that Quoine does not seek to dispute that they may be treated as property in a generic sense, I need not consider the question further.”
The case went on appeal – one of the major issues was whether the cryptocurrencies were held on trust but as to the property issue the Court of Appeal declined to decide whether Bitcoin was property capable of forming the subject matter of a trust. Menon CJ noted
“There may be much to commend the view that cryptocurrencies should be capable of assimilation into the general concepts of property. There are, however, different questions as to the type of property that is involved. It is not necessary for us to come to a final position on this question in the present case.”
This comment was described by Gendall J as “helpful”.[38] The Singapore decision in B2C2 has previously been much cited despite the brevity of its reasoning.
Vorotyntseva v Money-4 Ltd[39]
In Vorotyntseva Birss J sitting in the Chancery Division of the English High Court granted ex parte a proprietary freezing order over some bitcoin and ethereum currency, stating that the defendant in that case had not suggested that “cryptocurrency cannot be a form of ‘property’ but there was no further discussion on the point.
Shair.Com Global Digital Services Ltd v Arnold[40]
In Shair.com the Supreme Court of British Colombia granted an ex parte preservation order to the plaintiff company against its former chief operating officer with respect to digital currencies that might still be in the defendant’s possession.
Without providing any reasoning the Court accepted that cryptocurrencies could be property within the rules for preservation orders, noting that in the correspondence between the parties that had been filed for the proceeding the defendant had not denied that the plaintiff had an interest to pursue.
AA v Persons Unknown[41]
In AA Bryan J granted an interim proprietary injunction against a cryptocurrency exchange over bitcoin which represented proceeds of ransom monies paid out to a hacker by the applicant insurance company. The hackers had installed malware into the insurance company’s computer system, and demanded the company pay a ransom in bitcoin, to regain access to its system. The ransom was paid in bitcoin and transferred into the exchange. The insurance company applied to the Court for an interim proprietary injunction against the exchange over the bitcoin, amongst other things.
Only counsel for the applicant insurance company appeared at the hearing in that case and filed submissions. It seems the High Court in AA primarily relied on the Legal Statement on Cryptoassets and Smart Contracts, and that no other argument was addressed to the Court on the issue.
While from the above cases it will be apparent that this was not the first common law decision to consider the status of crypto assets, it is both the first to give detailed consideration to the point, and the first to consider the careful reasoning of the UKJT Legal Statement.
While Bryan J caveated his conclusions, stating that his conclusion is “at least to the level required for the purposes of this application for interim relief”, the otherwise unreserved endorsement and complete adoption of the careful and well-reasoned position taken by the UKJT Legal Statement strengthened the status of that publication, and had given one of its major conclusions a strong judicial endorsement.
New Zealand Cases
Gendall J referred not unsurprisingly to Dixon v R[42]and to Henderson v Walker[43] noting the findings in those cases as to the nature of digital property. He considered that the findings in Henderson, could be properly extended to wrongful interferences with cryptocurrency or digital assets. Any person who gained unauthorised access to the private key attached to cryptocoins and used it would permanently deprive the proper possessor of the cryptocoins of that property and its value.[44]
In the case of Commissioner of Police v Rowland[45] the Court approved a settlement under the Criminal Proceeds (Recovery) Act 2009 that included quantities of two cryptocurrencies – bitcoin and ethereum. The question whether the cryptocurrencies were “property” that was amenable to forfeiture under that legislation, however, was not raised in the proceeding. An assumption was made that they did fall within the definition in terms of that legislation[46].
Importantly the Judge analysed the approach in Dixon and Henderson noting the New Zealand courts involved have accepted that the orthodox position that information is not “property” does not attach to cases involving digital assets. There, digital files were seen as “property” by distinguishing them from “pure information”.
National Provincial Bank Ltd v Ainsworth
Gendall J then went on to consider Lord Wilberforce’s four requirements for property and considered that all four of his requirements could be applicable to computer data.
Identifiable Subject Matter
As to the requirement of identifiable subject matter, in the context of cryptocurrencies, computer readable strings of characters recorded on networks were sufficiently distinct to be capable of then being allocated uniquely to an accountholder on that particular network. For the cryptocurrencies involved here, the allocation is made by what is called a public key – the data allocated to one public key will not be confused with another.
This is the case even though the identical data is held on every computer attached to the network. Indeed, the working of the system is such that the distribution of the data across a large network of computers, when combined with cryptography that prevents individual networks from altering historic data over the network, assists in giving that data stability. It is these features that provide the basic underpinning for the existing cryptocurrencies.[47]
Thus the combination of the data together with the unique identifier which related to that data fulfilled the criterion of identifiability. This differs from the means of identification of computer data in a container within a logical file system, and shows the difficulty in trying to reach a common and all-embracing approach to computer data as property because of the diverse types of circumstances surrounding the storage and recover of such data.
Identifiable by Third Parties
Can the subject matter be identifiable by third parties. This second item of Lord Wilberforce’s criteria refers to the thing that is identified as having to have an owner capable of being recognised as such by third parties.
This is the aspect of exclusivity that is referred to by Thomas J in Henderson. There has to be a degree of control over the asset to the exclusion of others. That is as much if not more significant than the power to use of to benefit from the asset.[48]
Gendall J considered that exclusivity was achieved with cryptocurrencies by the computer software allocating to each public key a second set of data made available only to the holder of the account (the private key), and requiring the combination of the two sets of data in order to record a transfer of the cryptocurrency attached to the public key from one account to another.
The judge observed that a varied public key and a new private key for the cryptocurrency are generated after each transfer of cryptocurrency. He likened the private key to a PIN. Anyone who learns of the private key attached to a public key can transfer the public key but the private key, having been used once in respect of the public key, cannot be used again.[49]
Assumption by Third Parties
Third parties must respect the rights of the owner in that property. This means that the law will give effect to proprietary rights if a third party asserts a claim to ownership without justification.
Usually, although not invariably, an asset recognised by the law as an item of property will be something which is potentially desirable to third parties such that they would want themselves to obtain ownership of it. It may well be that an asset has no market value, but that matters not.[50]
Degree of Permanence or Stability
It was recognized that some assets have little permanence yet still remain property. Gendall J gave the example of a ticket to a football match which had a short useful or valid life and unquestionably was regarded as property.[51] The judge also considered that there was no problem in situations where the short life of an asset is the result of the deliberate process of transferring the value inherent in the asset so that one asset becomes replaced by another. This is the way that cryptocurrencies work but by the same token bank payments use a similar process which he described as native to the property in question.[52]
He also considered the action of wrongful interference with a cryptocurrency , by someone gaining unauthorised access to the private key or by hacking the address to which an owner intends to send a coin. He considered this from the position of risk, observing that the risk was not markedly greater than those borne by an owner of tangible property or a person relying on the integrity of a bank account record with or without the use of a PIN.[53]
Gendall J concluded his analysis of the Ainsworth categories with the following comment:
“I am satisfied that cryptocurrencies meet the standard criteria outlined by Lord Wilberforce to be considered a species of “property”. They are a type of intangible property as a result of the combination of three interdependent features. They obtain their definition as a result of the public key recording the unit of currency. The control and stability necessary to ownership and for creating a market in the coins are provided by the other two features – the private key attached to the corresponding public key and the generation of a fresh private key upon a transfer of the relevant coin.”[54]
Arguments Against Cryptocurrencies as Property
The Judge then considered some of the arguments against the concept of cryptocurrencies as property. These were identified primarily for the purposes of discounting them.
Tangibles or Choses in Action
The first argument arose from the dicta of Fry LJ in Colonial Bank v Whinney[55] and the theory that the law recognizes only two classes of personal property – tangibles or choses in action. Gendall J was of the view that cryptocurrencies could be classed as choses in action and observed that it would be ironic that something that might be said to have more proprietary features than a simple debt is deemed not to be property at all when a simple debt qualifies.[56]
No Property in Information
The second argument was that surrounding the suggestion that information was not property. I have discussed this in the context of Henderson and I repeat the differentiation that may be made between the contents (information) and the container (the logical file system).
He considered Your Response Ltd but was dismissive of it in a summary manner saying “[as] I see it, however, the decision in Your Response does not go much further than to make a determination upon the particular facts of that case. I am satisfied it is an inconclusive precedent in a case such as the present.”[57]
There was probably a very simple way to provide a rationale for dismissing Your Response by perhaps observing that there were differences in the subject matter of Your Response (a database) and that of Cryptopia (a cryptocurrency supported by blockchain and with a public\private key authentication process).
The common feature between the two cases is that they involve digital data but the way that data is stored and accessed is quite different and requires an analysis in each case to determine whether or not the legal requirements of “property” are fulfilled.
If there is a problem with Your Response it is that the Court of Appeal placed excessive weight upon the contents of the database which, correctly was the information, as opposed to the container within which it resided – that is the logical framework within which the data was contained.
Gendall J considered whether or not cryptocurrencies could be mere information. On the basis of my analysis the answer is no but Gendall J adopted a different line of reasoning.
Firstly he considered the purpose of cryptocurrencies which was to create an item of tradeable value not simply to record or to impart in confidence knowledge or information. Although cryptocoins are not backed by the promise of a bank, the combination of data that records their existence and affords them exclusivity is otherwise comparable to the electronic records of a bank. The use of the private key also provides a method of transferring that value. This might be seen as similar in operation to, for example, a PIN on an electronic bank account.
He then observed that cryptocoins were no more information than are the words of a contract. At its most basic level this is incorrect because words are capable of being read or heard.[58] Words are information. They inform and have meaning.
But what Gendall J meant, with respect, is that words within the framework of a contract are not information because collectively and cumulatively they create a relationship recognized by equity. The contract is conceptualized as the container for the specific information that establishes the equitably recognized relationship.
Another reason for rejecting the “cryptocurrency as mere information” argument is that the data is not available for those with eyes to read or ears to hear. Every public key recording the data constituting the coin is unique on the system where it is recorded. It is also protected by the associated private key from being transferred without consent.
In addition, cryptocurrency systems provide a more secure method of transfer than a mere assignment of a chose in action. It is possible in equity for the holder of a chose in action to assign it multiple times. Only one assignment will be effective to bind the debtor but the winner may not be the first assignee in time but rather the first assignee to notify the debtor. By way of contrast, a cryptocoin can not only be assigned in that way but it can also be sold only once and that the argument that cryptocurrency is mere information and therefore it is not property is a simplistic one and, in the view of Gendall J is wrong in the present context.[59]
Conclusion
Cryptopia is a significant case because, unlike its predecessors discussed above, it is the first case to give detailed analysis of the nature of cryptocurrencies and why they are property. It provides a carefully considered rationale for its conclusion and settles a complex question about aspects of digital property.
But it is not a complete answer. It is not a universal authority for the principle that digital data is property or that digital files are property. It is authority only for the proposition that cryptocurrencies are property. With little difficulty the rationale could probably be extended to other aspects of blockchain.
However, what Cryptopia and Henderson do give us is an analytical pathway to a consideration of whether the different flavours of digital data comprise property. Once the analysis recognizes that a consideration of the data alone without a consideration of the way in which it is technologically structured – what could be referred to as “the container theory” – is a flawed approach, the analytical pathways become significantly clearer.
As is the case with all aspects of the common law, further developments in this field will be incremental. However, on the present state of technological understanding of the Digital Paradigm it is unlikely that at law there will be a Unified Property Theory that will be applicable to all forms digital data.
[1] See Phipps v Boardman [1967] 2 AC 46 (HL). – information “is normally open to all who have eyes to read and ears to hear” See also Oxford v Moss (1979) 68 Cr App R 183.
[2] [2007] UKHL 21, [2008] 1 AC 1.
[3] Ibid. para [97].
[4] [2014] EWCA Civ 281, [2015] QB 41..
[5] Above n.2
[6] Torkington v McGee [1902] 2 KB 427
[7] Your Response Ltd v Data Team Business Media Ltd above n. 4 at para [17]
[8] Ibid. at para [38].
[9] There have been a number of other cases which have held that information does not amount to property. In the case of Boardman v Phipps [1967] 2 AC 46 it was held that confidential information was not property. The position in Australia and in New Zealand is similar – See TS and B Retail Systems v Three Fold Resources No 3 [2007] FCA 151 and Farah Construction Pty v Saydee Pty [2007] HCA 22. A similar conclusion has been reached in Hunt v A [2007] NZCA 332; [2008] 1 NZLR 368. In Money Managers Limited v Foxbridge Trading (Unreported High Court Hamilton CP 67/93 15 December 1993 per Hammond J) the observation was made that “extreme caution should be exercised in granting proprietary protection to information and that if protection is to be granted at all, it should be in very narrowly circumscribed terms.” The rejection of the argument that information is property was also upheld in Taxation Review Authority 25 [1977] TRNZ 129.
[10] [2019] NZHC 2184
[11] Ibid at [251]
[12] Thyroff v Nationwide Mutual Insurance Co 8 NY 3d 283 (NY 2007)
[13] [2015] NZSC 147 (SC); [2016] 1 NZLR 678
[14] Above n. 1.
[15] That section provides as follows.
Accessing computer system for dishonest purpose
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—
(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) causes loss to any other person. (My emphasis)
[16] Dixon above n. 13 [25].
[17] [2017] NZHC 189
[18] Above n. 13.
[19] Henderson above n. 10 para [260].
[20] Ibid para [263].
[21] Ibid para [264].
[22] Ibid para [266].
[23] Ibid para [270].
[24] I advance that comparison tentatively and solely for the purposes of illustration.
[25] [2020] NZHC 728.
[26] B2C2 Ltd v Quoine Pte Ltd (Singapore) SGHC(I) 3, [2019] 4 SLR 17 [B2C2 (SGHC); Vorotyntseva v Money-4 Ltd [2018] EWHC 2596 (Ch) and AA v Persons Unknown [2019] EWHC 3556, [2020] 4 WLR.
[27] UK Jurisdiction Taskforce Legal Statement on Cryptoassets and Smart Contracts (The LawTech Delivery Panel, November 2019) [Legal Statement on Cryptoassets and Smart Contracts] https://technation.io/news/uk-takes-significant-step-in-legal-certainty-for-smart-contracts-and-cryptocurrencies
[28] Above n. 26.
[29] Legal Statement on Cryptoassets and Smart Contracts above n. 27.
[30] Section 284(1)(a) Companies Act 1993.
[31] Section 2 in defining property states “Property means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal, and includes rights, interests, and claims of every kind in relation to property however they arise.”
[32] Cryptopia above n. 25 at paras [50} – [51].
[33] Ibid [63].
[34] Ibid [69].
[35] [1965] AC 1175 (HL) at 1247–1248
[36] Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.
[37] SGHC(I) 3, [2019] 4 SLR 17 [B2C2 (SGHC)
[38] Cryptopia above n. 25 [84].
[39] [2018] EWHC 2596 (Ch).
[40] 2018 BCSC 1512.
[41] [2019] EWHC 3556, [2020] 4 WLR 35.
[42] Above n.13.
[43] Above n.10.
[44] Cryptopia above n 25 [93].
[45] [2019] NZHC 3314.
[46] The Criminal Proceeds (Recovery) Act 2009 defined property.
[47] Cryptopia above n. 25 [105].
[48] Ibid. [109] – [110].
[49] Ibid. [112].
[50] Ibid. [114].
[51] Care must always be employed in considering analogies with exemplars from a different paradigm. See David Harvey Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017) at p. 63 et seq.
[52] Cryptopia above n. 25 [117].
[53] Ibid. [119].
[54] Ibid. [120]. This identical point is made in the Legal Statement on Cryptoassets and Smart Contracts which says that a cryptoasset is “a conglomeration of public data, private key and system rules.”
[55] (1885) 30 Ch D 261
[56] Cryptopia above n. 25 [124].
[57] Ibid. [126].
[58] As specified by Lord Dilhorne in Boardman v Phipps [1967] 2 AC 46
[59] Cryptopia above n. 22 [127] – [128]
The IT Countrey Justice 