Digital Control, digital Possession

• Applicant: Privatdozent Dr. Konrad Duden
• Subject Area: Private Law
• Term: from 2022 to 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 509011964

In our everyday life, we rely increasingly on connected devices: Alarm systems report break-ins remotely; refrigerators will soon order food independently, not to mention connected cars and watches. Connecting devices creates new opportunities for users and business. At the same time, it gives the provider the potential to influence the device at will. Control over the device is thereby split between the user and the provider: the latter can prevent the use of the device by blocking the integrated software or cloud access. He can thus turn a high-tech device into electronic waste. This dependence of the user on the provider is the starting point of my investigation. Oftentimes, conflicting interests may be dealt with through contract law. But what if there is no contract at all between the user and the provider? This may be the case if the user received the device from the initial purchaser. In this case, the user is restricted to protection under property law. My book investigates the extent to which ownership and possession protect the user in the digital - i.e. software- or networkbased - use of the device. The study contributes to general debates about the significance of property law in an increasingly digitalised world. To answer the guiding question, my dissertation deals with various basic questions of property law. It analyses the characteristics of corporeality and the quality as an object as prerequisites for the definition of property. It elaborates that the provider's digital control of the device, i.e. his ability to change the software integrated in the device, constitutes a type of physical control of the device. As such it establishes partial co-possession of the device and restricts the user's protection of possession. The digital use of an object can be impaired even without a physical modification of the device. There is therefore new urgency to the question of how far the intended use of an object is protected in rem even if there is no alteration of its substance. This question rarely arises in the case of analogue devices, since the possible uses of those devices derive from their substance and thus an interference with the uses is generally only possible through a change in the substance of the device. The study therefore examines which functions of a digital device are still part of the intended use, which is inherent in the device as such and thus protected in rem, and which are merely supplementary functionalities that are supplied on a contractual basis. Concerning interferences that do not affect the device itself but its connectedness, the study further analyses the in rem protection against disturbances of the property-environment relationship. Long after the famous Fleet case of the Federal Supreme Court, this protection is still controversial. The study proposes a new approach based on a uniform understanding of this group of cases as impairments of a network-based use of property.

• DFG Programme: Publication Grants