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UK Court recognizes NFTs as ‘private property’

CoinTelegraph | David Attlee  | May 15, 2022

OpenSea NFT marketplace - UK Court recognizes NFTs as ‘private property’At the beginning of May, the British Web3 community celebrated an important legal precedent — the High Court of Justice in London, the closest analog to the United States Supreme Court, has ruled that nonfungible tokens (NFT) represent “private property.” There is a caveat, though: In the court’s ruling, this private property status does not extend to the actual underlying content that NFT represents.

The theft of Boss Beauties

In February 2022, Lavinia D. Osbourne, founder of Women in Blockchain Talks, wrote on Twitter that two digital works had been stolen from the Boss Beauties — a 10,000-NFT collection of empowered women that was created by “Gen Z change-makers” and featured at the New York Stock Exchange.  The tokens came with a number of utility points, such as access to exclusive events, free books, and licensing fees. Osbourne claimed that the pieces, stolen from her MetaMask wallet, later emerged on the OpenSea market. She traced down the NFTs with the help of the security and intelligence firm Mitmark.

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The matter was brought to court in March, and on April 29, The Art Newspaper reported on the ruling of the United Kingdom’s High Court, in which the judges have recognized NFTs as property protected by law.  The court issued an injunction to freeze the assets on the accounts of Ozone Networks (the host of OpenSea) and compelled OpenSea to disclose information about the two account holders in possession of the stolen NFTs. Shortly afterward, OpenSea halted the sale of these NFTs — Boss Beauties number 680 and 691.

As the identities of the wallet holders remain uncertain, the injunction was granted against “persons unknown.” In its comment on the decision, Stevenson Law firm called a freezing injunction “quite a draconian (i.e. old fashioned and harsh) remedy,” describing it as a “nuclear weapon” of law.

The token versus the asset

Racheal Muldoon, the counsel on the case, highlighted “the utmost significance” of the ruling, which, she said, “removes any uncertainty that NFTs are property in and of themselves, distinct from the thing they represent, under the law of England and Wales.” But it is exactly the aforementioned detail that made other experts skeptical of the groundbreaking importance of the court’s decision.

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While the NFTs are already enjoying the status of property in their treatment by the U.S. IRS, the proclaimed difference between the token and the underlying asset does little to fill the current legislative vacuum in the U.K. and United States. “So if you have a token, you have a token. But not necessarily any rights in anything else,” as Juliet Moringiello, professor at Widener University Commonwealth Law Schoo, noted to Artnet News.

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