| I respectfully disagree. As a fellow lawyer, I think it’s the standard legal answer...maybe. Oil is a commodity and as described by you that transaction wouldn’t be a security. However, the way you frame it: >There's no underlying business that's being invested in or paying dividends to you. >You don't own shares in his company. You make it sound that only equity/shares are securities, which isn’t the standard. >It's 100% a speculation on appreciation. While there is massive speculation, that’s not the standard either, and I don’t think your factual conclusion is accurate either. The investors are relying on the efforts of others for their profits. The article you link concludes Ether isn’t a security because the investors aren’t relying on the issuer/promoter rather 3rd party developers. But case law doesn’t limit the reliance to the promoter it specifically uses the word “others”, but even so, I think it’s easily argued investors are relying on the foundation to bring 3rd party developers to the table. At the end of the day...the SEC could have done a Howey analysis on Ether itself, which in my opinion would have been much more interesting and informative than the SEC retroactively doing an analysis on the DAO. |
Are investors in gold relying on the efforts of others for their profits? After all, there are people out there making gold exchanges, developing gold mines, marketing gold jewelry, minting coins and bars for vaults, etc. etc. There's your efforts of third parties which drives up value of gold.
Of course the answer is "maybe" until the law is written or the case decided, but let's not lose sight of the fact that the law already has categories that are a closer fit.
Who's the third party in a decentralized ecosystem? Everyone who's ever contributed a line of code? Everyone who has developed a DAPP that feeds the demand side of the market?
Where's the common enterprise that's being invested in?