Lloyd's Maritime and Commercial Law Quarterly
CAN A DIGITIZED PRODUCT BE THE SUBJECT OF CONVERSION?
Sarah Green *
It is currently unclear whether or not digitized products would be classed as “goods” under the Torts (Interference with Goods) Act 1977, s 14(1), which refers to “all chattels personal other than things in action and money”. The exclusion of such products from this classification would lead to an inconsistency in the protection of individuals’ proprietary and possessory rights which is neither necessary nor appropriate (largely because it would make the legal protection of digitized material dependent upon the medium on which it is stored or transferred). This article contends that digitized products do belong within this definition of “goods” because they exhibit the requisite indicia of possession to make them choses in possession rather than choses in action. As such, they are liable to conversion.
1. Introduction
The rigid application of static legal concepts to the problems encountered in a dynamic commercial environment is likely to produce more questions than it does answers. One such question is whether or not a digitized product1
can properly be the subject of the tort of conversion, and this is the enquiry with which this article is concerned.2
The act of conversion entails dealing with goods in a manner inconsistent with the owner’s rights in those goods, but it is currently not clear that digitized products would be classed as “goods” for this purpose. The lack of clarity on this issue is increasingly problematic for
* Lecturer, University of Birmingham. I am grateful to Professor John Miller, Alan Bogg and anonymous referees for their constructive comments on an earlier draft of this piece, and to both Professor Robert Denning and PJ Denning for their invaluable technical advice. I would also like to thank Professor Jonathan Harris for asking me this question in the first place. The usual disclaimers apply.
The following abbreviations are used in the footnotes:
Bridge: M Bridge, Personal Property Law
, 3rd edn (Oxford, 2003);
Clerk & Lindsell
: AM Dugdale and MA Jones (eds), Clerk & Lindsell on Torts
, 19th edn (London, 2005);
Fawcett, Harris & Bridge: J Fawcett, J Harris & M Bridge, International Sale of Goods in the Conflict of Laws
(Oxford, 2004);
Goode: RM Goode, Commercial Law
, 3rd edn (London, 2004);
Harris: DR Harris, “The Concept of Possession in English Law”, ch 4 of AG Guest, Oxford Essays in Jurisprudence
(Oxford, 1961);
Lloyd: IJ Lloyd, Information Technology Law
(Oxford, 2004);
Milsom: T Milsom, Historical Foundations of the Common Law
, 2nd edn (Toronto, 1981);
T(IWG)A: Torts (Interference with Goods) Act 1977.
1. A digitized product is one which exists in an electronic format; often referred to under the umbrella term “software”.
2. Although this is a question which has not, as yet, troubled an English court directly, it has presented itself in both Canada and the United States: Unisys Canada Inc
v. Imperial Optical Co
(1999) 44 BLR (2d) 311; aff’d
(2000) 2 BLR (3d) 172 (Ont CA) and National Surety Corp
v. Applied Systems Inc
(1982) 418 So 2d 847 respectively.
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