The Warehouse and the Mind
On conflictability, created scarcity, and the error of reducing all property to matter — with evidence from the new law of digital assets
Thesis
Property is not the allocation of pre-existing matter but a designed system for securing produced values and the conflictable resources over which control can be exclusive. The argument that only rivalrous material objects can be owned is correct about pure information — which is non-rivalrous and unownable — yet false as a theory of property, because rivalrousness can be engineered. The recognition of rivalrous digital tokens as property under the Property (Digital Assets etc) Act 2025, Tulip Trading, and AA v Persons Unknown vindicates the theory’s grain of truth while refuting its overreach. The work of the mind is not parasitic on whoever owns the substrate; it is, far more often than not, the source of the value the substrate carries. The argument protects the warehouse and forgets the architect.
Keywords
Property theory · Intellectual property · Conflictability · Digital assets · Rivalrousness · Jurisprudence
A correspondent recently put the case against intellectual property about as sharply as it can be put. It is worth setting it out in full, because it is not a careless position. It is the distilled form of a serious and internally disciplined theory, and it deserves to be answered on its merits rather than caricatured:
“Ideas or information cannot be owned since they never exist as independent things but are just arrangements of features of material substrates which are already owned by someone by homesteading or contract. IP rights are in rem rights and thus they violate existing property rights. IP rights cannot be generated by contract. ‘Scarcity’ is not what is relevant, it is the existence of rivalrous or material objects over which there can be conflict — for such things, property rights rooted in original appropriation and contractual transfer fully determine who the owner is. … You cannot own someone else’s already owned material resource by running around and claiming ‘hey I came up with digital scarcity.’” @NSKinsella
I want to take this argument seriously, which means three things. First, conceding what is true in it, and a good deal is true. Second, isolating the precise points at which it fails — not by appeal to intuition, but by appeal to what property actually is and how property systems actually work. Third, and this is the part that distinguishes the present essay from the usual exchange of slogans, testing the argument against a body of law that has, in the last three years, adjudicated its central empirical claim. The argument says, in effect, that you cannot build a new ownable thing out of the immaterial — that “digital scarcity” is a contradiction in terms, a confused attempt to own an idea. The law of England and Wales has now decided otherwise, in considered terms, after the most thorough institutional review the subject has ever received. That decision is the most important evidence in the case, and the anti-IP theory, properly understood, does not survive contact with it.
The thesis of this essay is therefore narrow and, I hope, exact. The conflictability theory of property is a powerful and largely correct account of the physical baseline of ownership. It becomes false when it is promoted from a partial account into a complete one — when the true claim that pure, non-rivalrous information cannot be possessed is silently expanded into the false claim that only material objects can be owned, and when the genuine difficulty of owning an abstract idea is used to deny that intellectual production can be a primary source of value and of rights. The argument, in the end, protects the warehouse and forgets the mind. And on the one frontier where its strongest empirical premise could be tested — the digital — it has been refuted.
I. What the argument gets right
Begin with the concessions, because a critique that does not make them is not worth reading.
The argument’s foundation is the concept it variously calls scarcity, rivalrousness, or — in its most careful recent formulation — conflictability. The thought is this. Property rules are not arbitrary social furniture. They exist because human beings act in a world where some things cannot be used by two people at once, so that one person’s use excludes another’s, and conflict over those things is therefore possible and indeed inevitable. A condition of contestable control exists wherever a thing cannot be simultaneously held by rival claimants. Property is the institution that answers that problem: it assigns an owner, and by doing so converts a potential conflict into a determinate allocation, enabling cooperation, exchange, and the division of labour.
On this account, the relevant feature of a thing is not that it is rare but that it is rivalrous. The distinction is real and the theory is right to insist on it. A banana in a jungle where bananas hang from every branch is not scarce in the ordinary sense — there are plenty — yet it is conflictable in the technical sense, because if I pick this banana and you take it from me, I no longer have it. Rivalry, not abundance, is what calls property into being. And the corollary the theory draws is correct as far as it goes: information as such is not rivalrous in that sense. If I know a fact and tell it to you, we both now know it; my knowing is not diminished by your knowing; we are not in conflict over the fact. A melody, a theorem, a recipe, a method — considered purely as patterns that can sit in many minds at once — are not consumed by use and cannot be the subject of the kind of zero-sum contest that physical objects generate.
From this the theory draws several conclusions that are, in their narrowest form, simply true. You cannot own an abstract idea floating free of any determinate embodiment. The bare fact that you thought of something — that the pattern occurred in your mind before it occurred in another’s — does not, without more, generate a right enforceable against the rest of humanity. The slogan “good ideas are scarce, so of course they can be owned” really is an equivocation, trading on the colloquial sense of “scarce” (rare, valuable) to smuggle in a conclusion about the technical sense (rivalrous, conflictable) that does not follow. And the observation that much intellectual-property doctrine has overreached — patents of absurd breadth, copyright terms that have swollen to a century and more, litigation deployed to suppress rather than to protect — is not a fringe complaint but a mainstream one, shared by many who have no quarrel with property as such.
A critique that denied any of this would be dishonest. The conflictability theory is not a crank’s invention. It is a disciplined working-out of the insight that property is a response to conflict, and it is right that conflict, in the strict sense, arises only over rivalrous things. The error is not in the criterion. The error is in three moves that the theory makes after stating the criterion: a move of classification, a move of ontology, and a move of empirical assumption. Each is fatal, and the third has now been tested in court.
II. The classification error: “idea” is not the unit of analysis
The argument’s first move is to conduct the entire analysis at the highest possible level of abstraction — the level of “ideas or information” — and then to declare victory because nothing at that level can be owned. But “idea” is not the unit that any serious property claim attaches to. It is a deliberately frictionless abstraction chosen because it cannot bear ownership, and the choice does the work that the argument pretends its logic is doing.
Consider the gradient that the word “idea” flattens. There is a vague notion; a discovered fact; a method reduced to a concrete technical teaching; a manuscript; a body of source code; a circuit layout; a compiled database; a working machine; a protocol specification; a confidential design held in confidence; a sign used in trade to identify a maker. These are not the same kind of thing, and the legal systems of the world have never treated them as the same kind of thing. The protected object in a functioning intellectual-property regime is never “the idea.” It is an identified intellectual product — fixed, disclosed, implemented, or commercially deployed in a determinate form — and the right is never over another person’s brain or over the bare fact that someone has come to know something. It is over defined acts: copying, manufacture, publication, distribution, adaptation, or commercial exploitation of a delimited work or invention, under conditions the law specifies.
So “ideas cannot be owned” is not an answer to the question. It is an evasion of the prior question, which is one of classification: whether a particular intellectual output is sufficiently defined, original, useful, fixed, disclosed, or distinctive to warrant legal protection of specified uses. The argument refuses to ask that question. It collapses the manuscript, the machine, the protocol, and the trade mark back into “ideas,” and then announces that ideas are non-rivalrous. That is not analysis; it is category-flattening, and it works only because the flattened category was selected for its inability to be owned.
The point is not peculiar to intellectual property. The law everywhere distinguishes between a thing and the determinate rights, powers, and relations that may attach to it, and it does its real work at the level of the determinate, never at the level of the abstraction. A serious treatment of the question would have to descend from “ideas” to the actual subject matter and ask, of each, whether the conditions for protection are met. The argument’s strength is entirely a function of its refusal to descend.
III. The ontological error: reducing property to its material substrate proves too much
The argument’s second move is its deepest, and its most revealing. Information, it says, is “just arrangements of features of material substrates which are already owned by someone.” The implication is that because the pattern is not a free-standing lump of matter, it cannot be an object of property at all; the only owner in the picture is whoever owns the substrate.
This proves far too much, and the way it proves too much exposes the hidden premise driving the whole position.
By the same logic, a written contract is merely ink arranged on paper already owned by the stationer. A bank balance is merely a pattern of entries in a ledger owned by the bank. A share in a company is merely a record. A debt is merely an accounting relation. An easement is merely a legal relation concerning land owned by someone else. An option, a licence, a bond, a security interest, a covenant, a trust interest, a corporate right — every one of these would dissolve on the argument’s reasoning, because none of them is a free-standing physical object, and each is “just” an arrangement of features of substrates owned by others. No mature legal system operates this way, and none could. The commercial world runs on enforceable intangible claims, and an ontology that cannot accommodate a debt or a share is not a theory of property; it is a refusal of most of property.
This is the point at which the systemic, or relational, view of property — which is not a fringe doctrine but the considered consensus of modern legal theory — has to be stated plainly, because the argument depends on its being false. Property is not a thing. Property is a relationship between persons with respect to a thing. The Law Commission of England and Wales, in the most careful recent statement of the orthodoxy, puts it exactly so: the word “property” “describes a relationship between a person and a thing, and not the thing itself” (Law Com No 412, Digital Assets: Final Report (2023), and the companion Supplemental Report No 416 (2024), para 2.5). What the law recognises, under the heading of property, is a structured set of rights, powers, claims, priorities, and exclusions — the incidents of ownership, in the familiar analysis: the rights to use, to exclude, to the income, to the capital, to transfer, the immunity from expropriation, and the rest. Some of these relations concern tangible objects. A great many do not. Property is, as one influential formulation has it, less about the enjoyment of a thing than about control over access to it (a point the Law Commission adopts at Law Com No 412, para 5.1).
Once this is seen, the argument’s ontology is exposed as a smuggled absolute. The hidden premise is not the conflictability criterion at all; it is the dogma that only physical rivalry counts, only material objects can be owned, and therefore every intangible right is parasitic on whoever happens to own the matter beneath it. That dogma is never demonstrated in the argument. It is assumed, and then deployed to invalidate not merely intellectual property but — if its logic were honestly followed — the entire architecture of intangible commercial rights on which contract itself depends. Property is not physics. It is a normative and institutional order imposed upon the physical and social world, and the order routinely creates and protects valuable relations that are not chunks of matter. An argument that cannot say this without abolishing the chose in action has mistaken one province of property for the whole country.
IV. The error of inverting the mind and the matter
The third concession-and-correction goes to the moral foundation of the dispute, and it is here that the productive, or rights-of-the-mind, tradition makes its decisive contribution.
The argument pictures property as beginning with the grasping of material things: someone takes hold of an unowned stick or field or lump of metal, and ownership flows from that first physical seizure and from the contracts that subsequently move the matter around. On that picture, the originator of a design, a method, or an expression has done nothing that bears on ownership; the only acts that count are the physical appropriation of substrate and its contractual transfer.
But human wealth is not, in the main, produced by grasping. It is produced by thought — by reason applied to reality to reshape it for human purposes. This is not a sentimental flourish; it is the central fact about production that the materialist account omits. A machine is not merely metal; it is metal integrated by an act of design into something that does work it could not otherwise do. A medicine is not merely a quantity of chemicals; it is chemicals organised by an act of discovery into a compound that heals. A protocol is not merely a string of symbols; a book is not merely ink; a chip is not merely silicon. In each case the value resides overwhelmingly in the intellectual integration that renders the physical substrate useful, and that integration is the source of the value, not an afterthought to it. The mind is not ornamental to production. It is the engine of production.
From this the productive tradition draws a conclusion that the conflictability theory cannot accommodate: that the right to property is, at bottom, the right to keep and dispose of the product of one’s effort, and that since the distinctively human form of productive effort is the work of the mind, the products of intellectual effort have the strongest, not the weakest, claim to protection. To affirm property in physical production while denying it in intellectual production is to reward the last person to handle the matter and to strip the person whose design, method, or expression made the matter worth handling. It is to protect the warehouse and to ignore the mind that filled it.
The conflictability theorist has a reply, and it must be met rather than waved away. The reply is that the products of the mind, once expressed, are non-rivalrous: many people can use the design or the melody at once, so there is no conflict, so there is nothing for property to do. But this misidentifies what the productive theory asks the law to protect. It does not ask the law to assign ownership of an abstract pattern as if it were a field. It asks the law to secure to the creator the right to the specific product of his effort and to the defined commercial uses of it — to publication, manufacture, exploitation — against those who would appropriate the value of that effort without having borne its cost. The non-rivalry of the underlying pattern is precisely why a distinct body of doctrine is needed, with its own conditions and its own limits, rather than a simple extension of the law of chattels. Non-rivalry is the problem the doctrine is shaped around; it is not a proof that no doctrine can exist.
There is a genuine and unresolved tension here, and intellectual honesty requires that it be named rather than papered over. Reasonable people who accept the primacy of production in the creation of value still disagree about how far, and on what terms, the law should convert that primacy into exclusionary rights over reproducible patterns — about durations, about the line between idea and expression, about the proper scope of a claim. Those are hard questions, and the productive tradition does not settle them by fiat. But they are questions about the design of intellectual-property rights — their scope, term, standards, and remedies — not about whether intellectual creation can be a source of rights at all. The conflictability argument does not engage them. It forecloses the entire category by treating the work of the mind as legally parasitic on whoever owns the substrate, and that foreclosure is what the productive theory shows to be an inversion of the actual order of production.
V. The empirical error — and the verdict of the new law of digital assets
We come now to the argument’s strongest and most testable claim, and to the evidence that decides it.
Stripped to its core, the argument contains an empirical prediction masquerading as a conceptual truth. It says that you cannot bring a genuinely new ownable thing into existence out of the immaterial — that the digital realm contains only non-rivalrous information, that “digital scarcity” is therefore a contradiction, and that anyone who claims to have created a conflictable resource by software and rules is merely dressing up an attempt to own an idea. “You cannot own someone else’s already owned material resource,” the argument concludes, “by running around and claiming ‘hey I came up with digital scarcity.’”
This is the one place where the dispute is not a matter of competing intuitions but of fact, and the fact has now been found. Over the past several years the question whether a purely digital, ledger-recorded token can be an object of property rights — not by analogy, not as a courtesy, but as a matter of law — has been litigated, reviewed by a law-reform commission across two reports and a consultation running to many hundreds of pages, and settled by statute. The answer is yes. And the reasoning by which the answer was reached is, remarkably, a vindication of everything true in the conflictability theory and a refutation of the false extension built on top of it.
Consider what the law actually held. In AA v Persons Unknown [2019] EWHC 3556 (Comm), the Commercial Court held that a cryptoasset is property capable of supporting a proprietary claim, applying the orthodox criteria of property (definability, identifiability, capacity for assumption by third parties, and permanence) at [55]–[61]. The Court of Appeal confirmed the analysis in Tulip Trading Ltd v van der Laan [2023] EWCA Civ 83, holding at [24] that a cryptoasset “is property,” and doing so on a ground that the conflictability theorist will recognise as his own: that such a token is rivalrous, because “the holding of it by one person necessarily prevents another from holding that very thing at the same time.” Parliament then put the matter beyond doubt. The Property (Digital Assets etc) Act 2025, s 1, provides that a thing “is not prevented from being the object of personal property rights merely because it is neither a thing in possession nor a thing in action” — a deliberate statutory recognition that an immaterial thing, neither a chattel nor a mere claim, can be owned.
Now observe how carefully the Law Commission, whose draft this enacted, drew the line — and notice that it drew the same line the conflictability theory draws, only to the opposite practical effect. The Commission agreed, emphatically, that pure information is not property and cannot be possessed. It accepted the orthodox holding that intangible information is not susceptible to possession (the database case, Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281, applying OBG Ltd v Allan [2007] UKHL 21). It went further and held, in terms the anti-IP theorist could have written, that a private key — the credential by which a token is controlled — “comprise[s] only information,” can be copied without limit, and is not the asset (Law Com No 416, paras 2.25–2.26). On the question of non-rivalrous information, in other words, the law and the conflictability theory are in complete agreement: information as such is non-rivalrous, non-excludable, and not ownable.
But then the Commission identified the very thing the anti-IP argument insists cannot exist: rivalrousness that is engineered. A crypto-token, it found, is “rivalrous by design,” its single-valid-state quality “contingent on the existence of robust technical authentication and validation mechanisms” that prevent the same unit from being spent twice (Law Com No 412, para 4.33). Rivalrousness, the Commission held, “acts as a useful separator between pure information and cryptoassets” (para 4.29): the token is rivalrous in exactly the respect in which a copied file is not, because the system’s rules make one person’s control of it exclude everyone else’s. The token “is not a record or representation of something; it is a distinct and independent thing” (para 4.19). And because it is rivalrous, excludable, and conflictable, it is — on the orthodox criteria, and now by statute — property.
The significance of this for the argument under examination is difficult to overstate. The conflictability theory says that property is for conflictable resources: things over which a condition of contestable control exists, where my control excludes yours. That is a precise description of an engineered-scarce digital token. Run the theory’s own test on such a token and it passes: only one person can validly control a given unit at a given time; one person’s control excludes another’s; the resource is rivalrous, conflictable, and therefore — by the theory’s own criterion — a proper object of property. The theory, applied honestly to the facts, does not yield “nobody can own a digital token.” It yields the opposite. The token is precisely the kind of thing the theory says property exists to allocate.
The error, then, was never in the conflictability criterion. It was in the empirical assumption silently bolted to it — the assumption that the digital world contains only non-rivalrous information, so that “digital scarcity” must be a confused metaphor. Engineering falsifies that assumption. Scarcity, in the technical sense the theory cares about, can be constructed: a system of cryptographic commitments, validation rules, and consensus over state can manufacture a resource that genuinely cannot be held by two parties at once. To insist, in the face of this, that “you cannot own someone else’s already owned material resource by claiming you came up with digital scarcity” is to answer a claim no one with a clear head is making. The claim is not that one owns the concept of digital scarcity, nor that one owns the computers of the world by having devised a rule-set. The claim is that a particular, engineered, rivalrous, controllable digital state is a conflictable resource and therefore an object of property — and that claim the law has now accepted, on reasoning that is the conflictability theory’s own.
Two cautions are owed here, in the interest of the rigour this essay has tried to maintain, and they cut in the argument’s favour as far as they honestly can.
First, the digital-token result does not, by itself, establish copyright or patent over non-rivalrous expressions and inventions. What it establishes is narrower and, for the argument, fatal in a different way: that the blanket proposition “only material objects can be owned” is simply false. An immaterial thing — neither a chattel nor a claim — can be, and now in law is, owned. That demolishes the ontological move of Part III directly and on authority. Whether the law should also protect non-rivalrous patterns, through copyright and patent, remains a distinct and genuinely harder question, on which the productive theory of Part IV does the argumentative work and on which honest people continue to disagree about scope and limit. The token case and the IP case should not be conflated; they are answered by different considerations, and only the first is settled by the new law. But the first is enough to dispose of the argument’s most sweeping premise.
Second, the result says nothing about who created any particular system, and nothing in this essay should be read as a claim about authorship or about ownership of any specific network. Indeed the law’s own logic points away from such claims: ownership of a token attaches to control of it, so the units are owned by those who control them, not by whoever first described the method; and a protocol, as an abstract method, is no more ownable as such than any other discovery, though a particular written specification or body of code may attract copyright in the ordinary way. The lesson of the new law is not that some person owns a network. It is that engineered digital scarcity is real, that the conflictable resources it produces are property, and that the argument’s prediction to the contrary has been tested and has failed.
VI. The remaining errors, briefly
Three further moves in the argument can be dealt with more shortly, because each is a variation on the errors already identified.
“IP rights are in rem and therefore violate existing property rights.” An in rem right is simply a right good against persons generally rather than against a single counterparty, and the legal system is replete with such rights that no one regards as violations of property: a landowner’s right excludes all the world; an easement binds successors; a registered charge follows the asset into third hands; a trust binds the conscience of those who receive trust property with notice; and a third-category digital asset, now, is good against the world save a person with a superior title (Law Com No 412, para 5.84). The question is never whether a right is in rem — pervasively, legitimate property rights are — but whether the legal order has good grounds for recognising the exclusionary structure, grounds typically furnished by public rules of registration, notice, statutory definition, fixation, or grant. The argument treats “in rem“ as a disqualifying incantation. It is nothing of the kind. To assume that only first possession of matter can generate a right good against the world is to assume precisely the conclusion in dispute.
“IP rights cannot be generated by contract.” In its narrow form this is true and unremarkable: a private agreement between two parties cannot, by itself, impose duties on strangers. But the argument converts a limitation into an abolition. That a contract cannot bind the world does not entail that intellectual property is impossible or unrelated to contract; it entails only that the universal element of an intellectual-property right comes from public law, while a vast portion of the doctrine’s actual operation runs through contract — licences, assignments, confidentiality undertakings, software terms, employment-invention clauses, research and publishing agreements, standards licences. And legal systems routinely attach proprietary or quasi-proprietary consequences to arrangements once there is notice, registration, or statutory authority. The argument’s own enthusiasm for contract is, moreover, quietly parasitic on the intangible infrastructure it disdains: contracts depend on enforceable claims, assignability, damages, injunctions, identity, and recognised legal objects, and a world in which only rivalrous matter counted would render most of contract unstable. The argument cannot consistently keep contract while discarding the legal abstractions that make contract reliable.
Appropriation by copying. The argument leans heavily on the observation that a copyist does not take the original object — the author keeps her manuscript, the inventor keeps his prototype. True, and beside the point. A property system concerned only with physical subtraction cannot explain a large class of injuries the law has long recognised: the destruction of an exclusivity, the collapse of a market, the misleading of consumers, the defeat of a disclosure bargain, the breach of a confidence, the conversion of another’s productive achievement into uncompensated advantage. The copyist does not remove the author’s paper, but he may appropriate the commercial value of the text; he does not seize the inventor’s prototype, but he may take the invention after its disclosure; he does not steal the merchant’s signboard, but he may use the mark to divert the trade. That these are real harms, and that a property theory which can see only the taking of lumps of matter cannot account for them, is itself a demonstration that property protects more than physical possession.
VII. What survives, and what does not
Let me state the balance as fairly as I can, because the point is not to win a debate by exaggeration.
The conflictability theory survives as what it always was: a rigorous and largely correct account of the physical baseline of property, and a genuinely useful corrective against lazy arguments for intellectual property that equivocate on the word “scarce.” It is right that property answers a problem of conflict, that conflict in the strict sense arises only over rivalrous things, that pure non-rivalrous information cannot be possessed, that one cannot own an abstract idea by being the first to think it, and that much intellectual-property doctrine has grown overbroad and abusive. Each of those propositions is true, and a critic who denies them forfeits the right to be taken seriously.
What does not survive is the promotion of that partial account into a total theory of property. The argument is right that non-rivalrous information is not ownable, and wrong that only material objects can be owned — a proposition now falsified, on authority, by the recognition of immaterial rivalrous tokens as property. It is right that conflict requires rivalrousness, and wrong that rivalrousness cannot be engineered — a proposition falsified by the deliberate construction of conflictable digital states. It is right that a contract cannot bind the world, and wrong that intellectual property is therefore incoherent. It is right that in rem rights require justification, and wrong that they are inherently suspect. It is right that “I thought of it” creates no right, and wrong that creation is therefore irrelevant to property, when production by the mind is the very source of most of the value that property protects.
On the specific provocation that prompted all this — the claim that one cannot own anything “by claiming I came up with digital scarcity” — the honest verdict cuts cleanly in two directions, and refuses both absolutisms. The abstract concept of digital scarcity is a discovery, and no more ownable as such than any other idea: on that the critic is right. But the rivalrous tokens that an engineered-scarce system produces are owned — by those who control them — which is why the contrary slogan, that “nobody owns” such things, is equally mistaken; the law is now explicit that they are property and that ownership tracks control. And a particular implementation — a specification, a body of code — may attract copyright in the ordinary way, on grounds the productive theory supports and the conflictability theory has no good answer to. The truth lies between the two flags planted at the extremes: neither “you own the idea and therefore the network” nor “nothing here can be owned,” but the disciplined middle that the new law has in fact adopted — control-based ownership of conflictable digital things, an open and contestable question about exclusive rights in non-rivalrous patterns, and no ownership of abstractions at all.
VIII. Conclusion: property is built, not found
Underneath the whole dispute lies a picture of property as something discovered — already complete once physical objects have been seized and traded, requiring of the law only that it ratify the brute facts of possession. That picture is false to the most elementary features of property law. Property systems are designed. They are institutional technologies that specify what counts as possession, transfer, title, priority, notice, fraud, abandonment, accession, agency, trust, security, registration, limitation, and remedy. There is no property without rule-making, and the rules are not read off the surface of matter; they are constructed by a legal order to secure produced values, allocate control, prevent wrongful appropriation, support investment, and make cooperation possible across time and distance.
Once that is admitted, the real question is no longer whether intellectual property appears in some imagined pre-legal state of nature — it does not, but neither does the chose in action, the registered company, the floating charge, or the digital token. The real question is whether a rational legal order has good reason to recognise defined rights in intellectual production. And the answer cannot be supplied by the materialist reduction the argument relies on, because that reduction, followed honestly, would abolish most of the intangible architecture of modern commerce along with intellectual property, and because it has now been refuted at its most testable point by a body of law that recognised engineered, immaterial scarcity as property on reasoning that is the conflictability theory’s own.
The argument fails, in the end, not because conflictability is the wrong criterion but because it is not the whole of property; not because non-rivalrous information can be possessed but because rivalrousness can be made; not because contract binds the world but because property is larger than contract; and most fundamentally because it treats the work of the mind as a parasite on whoever owns the substrate, when in truth the mind is, far more often than not, the source of the value the substrate carries. It is a theory that protects the warehouse and forgets the architect, the engineer, the author, and the inventor who made the warehouse worth protecting. A fuller account — older than the materialist one, and now better supported by the law — holds that property is a normative and institutional system for securing produced values and enabling rational human action across time, and that on such an account the products of the mind are not the weakest claimants to protection but, very often, the strongest.
Keywords
property theory; intellectual property; anti-IP; conflictability; rivalrousness; non-rivalrous information; engineered scarcity; digital scarcity; crypto-assets as property; third-category property; Property (Digital Assets etc) Act 2025; Law Commission digital assets; Tulip Trading; AA v Persons Unknown; in rem rights; property as a system of rights; productive theory of value; choses in action; possession and control
How much does the IP owner pay the commons for its protection by them? Or are the profits of IP an economic rent, that is, un-earned at least partially?
#apex