Bitcoins and other cryptocurrencies as property?

Abstract

The hype over bitcoins has been compared to the tulip mania in 17th century Netherlands and it has spawned a host of similar cryptocurrencies. As it has gained in popularity, the law has approached the subject warily, mostly from a regulatory perspective. However, no comprehensive consideration of the fundamental nature of a bitcoin owner’s private law relation to his/her/its bitcoins has been properly conducted. Whether or not bitcoins or other cryptocurrencies achieve mainstream adoption or remain of interest to only a niche audience, this question will inevitably have to be properly addressed. This paper proposes to consider if bitcoins might be recognised as the subject of property rights by Commonwealth courts and if so, what such rights ought to entail. It will begin with a careful consideration of the controversial question of the scope of the law of property before considering bitcoin’s place within the law of property (if any). What is the meaning of property in the common law? What fundamental differences exist between tangible and intangible property? If ownership of bitcoins is worthy of protection, what shape should it take? It suggests that the common law adopts a more expansive view of property than civilian systems and that it is thus able to accommodate bitcoins and other cryptocurrencies within its law of property. However, owing to their unusual nature, legal rights to them must take on a unique and unorthodox form. The code underlying Bitcoin also poses particular challenges to the law which this paper also addresses.