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7 - Give It Back

Title in Digital Property

from Part I - Contemporary Technological Developments

Published online by Cambridge University Press:  08 February 2025

Stacy-Ann Elvy
Affiliation:
University of California, Davis
Nancy S. Kim
Affiliation:
Chicago-Kent College of Law
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Summary

The recent crypto winter – and the malfeasance of crypto bad actors – has revealed a difficulty in the developing law of digital property. Although the standard recourse for improperly taking someone else’s rivalrous digital property should be conversion (pay for it) or replevin (give it back), courts have only begun the common law process of articulating standards for these causes of action. In short, the current law invites and incentivizes digital theft because it can be very hard to get digital property back. We argue here that the common law is strongest in technology cases when it proceeds by analogy well-rooted in traditional case law, and that digital conversion and replevin are directly applicable to situations where someone has converted or improperly taken the digital property of another.

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