The concept of possession is currently seen by many as inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. This Article dissects the relationship between property, possession, and thinghood, deriving a new tech-neutral theoretical model of possession grounded in information theory. By unpacking the process through which the social institution of property emerges, this Article provides the rationale for a new theory of possession.

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’ s status as property—demonstrates that discussions of data trusts may be ignoring a key element. Ultimately, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.

The prevailing but legally problematic narrative among crypto enthusiasts is that NFTs allow true ownership of digital items in the metaverse for two reasons: decentralization and interoperability. These two technological features have led some to claim that tokens provide indisputable proof of ownership, which can be used across various metaverse apps, environments and games. Despite these claims, the legal status of virtual “owners” is significantly more complicated. In fact, the current ownership of metaverse assets is not governed by property law at all, but rather by contract law. As a legal scholar who studies property law, tech policy, and legal ownership, I believe that what many companies are calling “owners” in the metaverse is not the same as ownership in the physical world, and consumers are at risk of being swindled.