William & Mary Law Review
People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.
Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and why people purchase virtual things in favor of regulation based on the misguided search for the technological essence of something. If a Bitcoin is used as money, it is money. If an NFT is valued, bought, and sold as a thing within a community of collectors, the law ought to and inevitably will support that characterization.
Joshua A.T. Fairfield, Making Virtual Things, 64 Wm. & Mary L. Rev 1057 (2023).