The Supreme Court has recently considered the definition of "property" under section 249 of the Crimes Act 1961 in Dixon v R [2015] NZSC 147.  The case arose as a result of Mr Dixon's actions during his employment as a security officer at a bar during the Rugby World Cup.  Mr Dixon obtained CCTV footage of a member of the English rugby football team leaving a bar with a woman, and posted it to social media, after failed attempts to sell it to media outlets.  In this decision the Court held that a digital file consisting of CCTV footage does constitute "property" for the purposes of the provision, resulting in the conviction of Mr Dixon for "accessing a computer system for a dishonest purpose" by obtaining property without claim of right. 

The Supreme Court overturned the decision of the Court of Appeal, which had held that digital files are "pure information" and thus, following the orthodox view, could not be property.  The Supreme Court found that the digital files could be identified, had a value, and were capable of being transferred to others; they also had a physical presence.

The Court took a purposive approach to interpretation, looking at the scheme of Part 10 of the Act. Part 10 introduced four new offences relating to crimes involving computers that reference software and data.  It also contains a wide definition of "computer system" and an extended definition of "document" which includes any "device…on which information, sounds, or other data are recorded".  These characteristics indicated that Parliament had stored data in mind when the provisions were drafted.  In this context, the Court found that the fundamental characteristics of property are that it is capable of being owned and transferred.

American authorities on the status of software also provided some assistance. Although the Courts differ in their view of whether software is tangible or intangible, there is general agreement that it constitutes "property".  What is obtained is not merely intangible knowledge, but a record of knowledge stored in some kind of physical form.  After a review of these authorities, the Court concluded that data should be treated in the same way. 

See Court decision here.