What's Offered in an ICO? Digital Coins as Things

Abstract

Digital tokens — variously intended to function as currency, as securities, or as vouchers for deferred goods and services — have burst into the mainstream over the past 12 months in high-worth ‘Initial Coin Offerings’ (‘ICOs’). Prior to the important questions of legal characterization that digital tokens raise as ‘money’ or ‘securities’ for the purposes of prudential, capital markets, tax, or other regulations, we must establish how the law takes cognizance of a digital token at all. In this article I argue that no legal system deals adequately with immaterial objects, which include digital tokens but also more traditional money and securities; establishing a satisfactory legal category for immaterial objects as objects of property law is therefore a necessary first step. Using the English law of money as an entry point into this complex of questions, I explore the ontology of digital immaterial objects and set out the conceptual basis for a new category of property. I argue that such a category is long overdue and will be increasingly important in the future.