People are not paying enough attention to possession. You already know it because you read this blog regularly.1 You also know that one who enjoys a piece of property, be it physical or digital, may be tempted to claim a right to enjoy it exclusively for oneself.2 It is a thorny issue in the digital world because Big Tech rely on a big data infrastructure that has competitive effects that are closely related to technology.3 Knowing who possess a digital thing is as important as knowing who owns it. You feel it because you know that your data are yours but worry about their processing. Process is mainly a matter of fact, and therefore is a matter of possession. It may seem peculiar or specific to information technologies that rely on intangible assets. A recent case decided by the French Cour de cassation that is the supreme court that deals with civil, criminal, and commercial matters helps to understand that legal issues regarding software have deeper roots that one may think.
Similarities between digital assets and immovable property are easily noticed when one has to prove changes made to trees or to a digital project over time.4 Acquisition of the legal title to a thing by prescription depends on time and on acts done by the person who acquires the piece of property and the one who loses it. Tolerance does not support possession nor acquisition according to article 2262 of the French civil code. Prescription claims have procedural implications and have to be supported by facts to succeed. This post deals only with facts that support the application of law. Factual basis of the application of black letter law is called base légale or legal basis.5
This supreme court has checked whether the Court of Appeal reexamined the title chain prior to decide that the garden had not been mentioned in successive sale contracts. It has found that the appeal judges have correctly decided that the title to the garden could not be acquired by prescription.6
What is left when legal title ceases to be a matter of dispute? Possession!
The Cour de cassation has noted that the Court of Appeal had relied on a document that proved that one of the co-owners was the only user of the garden and had the only key to it.7 As one can see, time is not only related to ownership but also to possession. Access to the thing matters as well. The appeal judges also have noted that no other co-owner has claimed access to the garden and that the same co-owner had been authorised by the board of co-owners to restore the garden fence and change the garden lay out. This co-owner has entirely paid for garden maintenance.8 This indicates that a person exercises a power over the thing beyond use. The Cour de cassation found that the appeal judges had correctly analysed facts to support the application of law to this matter. Hence, their decision to recognise an exclusive right to enjoy the garden does not lack of legal basis. This case is interesting because it reminds the practitioner that contracts often do not provide enough information about powers exercised over a piece of property. This is noteworthy, especially in software matters because licenses tend to overshadow facts.
In brief, pay attention to time, access to a piece of property, and powers exercised over it to determine who possesses it.
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See Heavy and soft. ↩
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See Succession and damages. ↩
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See The distinction between disability and incapacity at 1.2. ↩
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C. Cass, Civ. III, 12 December 2024, 23-12.804, 23-12.968 at 17. ↩
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Id. at 18. ↩
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Id. at 19. ↩