'Crypto is Not Property' by Robert Stevens in (2023) Law Quarterly Review (Forthcoming) is characterised as 'A short paper explaining why "cryptoassets" cannot constitute legal property, despite the academic consensus to the contrary'.
Stevens comments
That crypto is “property”, has widespread academic support, the endorsement by the United Kingdom Jurisdiction Taskforce (chaired by Sir Geoffrey Vos the then Chancellor of the High Court and now Master of the Rolls) and also that of the Law Commission in its recent consultation paper. The claim of this short article is that it is (dangerously) untrue. As a secondary matter, it is claimed that the case for the legislature recognising cryptoassets as “property” generally for legal purposes is extremely weak, and that for the courts taking such a step non-existent.
Lawyers should not be bedazzled by new technology, nor by these innovative ways of holding wealth. Almost all cryptoassets are unproductive and many are positively harmful. For most of their forms, our legal system should not be seeking to facilitate them but, alongside other jurisdictions, attempting to eliminate their use where possible. ...
Within a common law system, what rights (or privilege, powers or immunities) does the correct holder of a key to a Bitcoin wallet have? Do they have a cause of action to enforce a primary right or one to correct any infringement? It is impossible to identify any such claim. No tort applicable to things, such as trespass, conversion or (where still in existence) detinue is operative as these are all dependent upon the claimant having a right in relation to a physical thing that can be possessed. The holder of the key has no contractual rights against anyone, the whole point of the system is to do away with intermediaries such as banks who would owe such a duty. There are no statutory rights of enforcement, such as those of someone who holds a patent, copyright or trade mark. Unlike the holder of a milk quota, the string of numbers that gives access to the Bitcoin wallet does not, without more, acquire a privilege not to perform any duty or an immunity from any suit.
The holder of a Bitcoin key has no property right, in either of the two senses identified above. It is a form of information, admittedly with special factual features given to it by virtue of the system within which it makes sense. But that is all.
