Free software and fiduciary duty

But I would have thought, if nobody has addressed whether bitcoin is property, then at some point a plaintiff or defendant could ask the judge to decide and say "there is no precedent, regardless of what other courts have assumed, please do the right thing". If other courts haven't ruled, the Judge is free to rule how he pleases.

Cheers,
Wol

Except it's not exclusive—that was the point of the explanation about it being non-rivalrous above—and bitcoins don't really exist either as a physical good *or* as a bundle of legal rights and obligations. What exists is one or more versions of the blockchain which say that a certain private key (identified by its public counterpart) can be used to sign a transaction which Bitcoin nodes following certain rules will recognize as valid and (probably, eventually) incorporate into future version(s) of the blockchain. Critically, they have no *obligation* to either to recognize that transaction as valid or to include it in the blockchain, even if it's properly signed. That's just a convention; the rules of a game, so to speak, in which no one is compelled to participate.

With that said, there can be rights closely related to the Bitcoin system which are not themselves bitcoins. For example if you have an account with an exchange then the exchange may have a contract with you to perform the service of signing and broadcasting a valid transaction according to the Bitcoin rules in response to your request to make a withdrawal. Alternatively, if you make a purchase with bitcoins the merchant agrees to provide you with goods or services in exchange for you signing and broadcasting such a transaction. Those contacts would classified as rights—having agreed to this exchange of goods and services (which does not include bitcoins per se, only the signed transactions) both parties have a legal obligation to uphold their end of the bargain.