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Howey Test and Cryptocurrencies: 'Every ICO Is a Security'
What Is the Howey Test?
To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts."
The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.
Understanding the Howey Test
The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land.
The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.
This established four criteria for determining an investment contract. Investing contract:
- An investment of money
- n a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.
Howey Test and Cryptocurrencies
Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.
The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test.
Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."
For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.
These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."
Special Considerations
If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register.
In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry.
Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities.
SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'
Howey Test FAQs
How Do You Determine If Something Is a Security?
The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.
Why Is Bitcoin Not a Security?
Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.
Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities.
A Security Defined by the SEC
In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.
The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:
- An investment contract's existence
- The formation of a common enterprise
- The issuer's profit promise
- Third-party promotion of the offering
Read original post.
More on Web3 & Crypto
CNET
4 years ago
How a $300K Bored Ape Yacht Club NFT was accidentally sold for $3K
The Bored Ape Yacht Club is one of the most prestigious NFT collections in the world. A collection of 10,000 NFTs, each depicting an ape with different traits and visual attributes, Jimmy Fallon, Steph Curry and Post Malone are among their star-studded owners. Right now the price of entry is 52 ether, or $210,000.
Which is why it's so painful to see that someone accidentally sold their Bored Ape NFT for $3,066.
Unusual trades are often a sign of funny business, as in the case of the person who spent $530 million to buy an NFT from themselves. In Saturday's case, the cause was a simple, devastating "fat-finger error." That's when people make a trade online for the wrong thing, or for the wrong amount. Here the owner, real name Max or username maxnaut, meant to list his Bored Ape for 75 ether, or around $300,000. Instead he accidentally listed it for 0.75. One hundredth the intended price.
It was bought instantaneously. The buyer paid an extra $34,000 to speed up the transaction, ensuring no one could snap it up before them. The Bored Ape was then promptly listed for $248,000. The transaction appears to have been done by a bot, which can be coded to immediately buy NFTs listed below a certain price on behalf of their owners in order to take advantage of these exact situations.
"How'd it happen? A lapse of concentration I guess," Max told me. "I list a lot of items every day and just wasn't paying attention properly. I instantly saw the error as my finger clicked the mouse but a bot sent a transaction with over 8 eth [$34,000] of gas fees so it was instantly sniped before I could click cancel, and just like that, $250k was gone."
"And here within the beauty of the Blockchain you can see that it is both honest and unforgiving," he added.
Fat finger trades happen sporadically in traditional finance -- like the Japanese trader who almost bought 57% of Toyota's stock in 2014 -- but most financial institutions will stop those transactions if alerted quickly enough. Since cryptocurrency and NFTs are designed to be decentralized, you essentially have to rely on the goodwill of the buyer to reverse the transaction.
Fat finger errors in cryptocurrency trades have made many a headline over the past few years. Back in 2019, the company behind Tether, a cryptocurrency pegged to the US dollar, nearly doubled its own coin supply when it accidentally created $5 billion-worth of new coins. In March, BlockFi meant to send 700 Gemini Dollars to a set of customers, worth roughly $1 each, but mistakenly sent out millions of dollars worth of bitcoin instead. Last month a company erroneously paid a $24 million fee on a $100,000 transaction.
Similar incidents are increasingly being seen in NFTs, now that many collections have accumulated in market value over the past year. Last month someone tried selling a CryptoPunk NFT for $19 million, but accidentally listed it for $19,000 instead. Back in August, someone fat finger listed their Bored Ape for $26,000, an error that someone else immediately capitalized on. The original owner offered $50,000 to the buyer to return the Bored Ape -- but instead the opportunistic buyer sold it for the then-market price of $150,000.
"The industry is so new, bad things are going to happen whether it's your fault or the tech," Max said. "Once you no longer have control of the outcome, forget and move on."
The Bored Ape Yacht Club launched back in April 2021, with 10,000 NFTs being sold for 0.08 ether each -- about $190 at the time. While NFTs are often associated with individual digital art pieces, collections like the Bored Ape Yacht Club, which allow owners to flaunt their NFTs by using them as profile pictures on social media, are becoming increasingly prevalent. The Bored Ape Yacht Club has since become the second biggest NFT collection in the world, second only to CryptoPunks, which launched in 2017 and is considered the "original" NFT collection.
Trent Lapinski
4 years ago
What The Hell Is A Crypto Punk?
We are Crypto Punks, and we are changing your world.
A “Crypto Punk” is a new generation of entrepreneurs who value individual liberty and collective value creation and co-creation through decentralization. While many Crypto Punks were born and raised in a digital world, some of the early pioneers in the crypto space are from the Oregon Trail generation. They were born to an analog world, but grew up simultaneously alongside the birth of home computing, the Internet, and mobile computing.
A Crypto Punk’s world view is not the same as previous generations. By the time most Crypto Punks were born everything from fiat currency, the stock market, pharmaceuticals, the Internet, to advanced operating systems and microprocessing were already present or emerging. Crypto Punks were born into pre-existing conditions and systems of control, not governed by logic or reason but by greed, corporatism, subversion, bureaucracy, censorship, and inefficiency.
All Systems Are Human Made
Crypto Punks understand that all systems were created by people and that previous generations did not have access to information technologies that we have today. This is why Crypto Punks have different values than their parents, and value liberty, decentralization, equality, social justice, and freedom over wealth, money, and power. They understand that the only path forward is to work together to build new and better systems that make the old world order obsolete.
Unlike the original cypher punks and cyber punks, Crypto Punks are a new iteration or evolution of these previous cultures influenced by cryptography, blockchain technology, crypto economics, libertarianism, holographics, democratic socialism, and artificial intelligence. They are tasked with not only undoing the mistakes of previous generations, but also innovating and creating new ways of solving complex problems with advanced technology and solutions.
Where Crypto Punks truly differ is in their understanding that computer systems can exist for more than just engagement and entertainment, but actually improve the human condition by automating bureaucracy and inefficiency by creating more efficient economic incentives and systems.
Crypto Punks Value Transparency and Do Not Trust Flawed, Unequal, and Corrupt Systems
Crypto Punks have a strong distrust for inherently flawed and corrupt systems. This why Crypto Punks value transparency, free speech, privacy, and decentralization. As well as arguably computer systems over human powered systems.
Crypto Punks are the children of the Great Recession, and will never forget the economic corruption that still enslaves younger generations.
Crypto Punks were born to think different, and raised by computers to view reality through an LED looking glass. They will not surrender to the flawed systems of economic wage slavery, inequality, censorship, and subjection. They will literally engineer their own unstoppable financial systems and trade in cryptography over fiat currency merely to prove that belief systems are more powerful than corruption.
Crypto Punks are here to help achieve freedom from world governments, corporations and bankers who monetizine our data to control our lives.
Crypto Punks Decentralize
Despite all the evils of the world today, Crypto Punks know they have the power to create change. This is why Crypto Punks are optimistic about the future despite all the indicators that humanity is destined for failure.
Crypto Punks believe in systems that prioritize people and the planet above profit. Even so, Crypto Punks still believe in capitalistic systems, but only capitalistic systems that incentivize good behaviors that do not violate the common good for the sake of profit.
Cyber Punks Are Co-Creators
We are Crypto Punks, and we will build a better world for all of us. For the true price of creation is not in US dollars, but through working together as equals to replace the unequal and corrupt greedy systems of previous generations.
Where they have failed, Crypto Punks will succeed. Not because we want to, but because we have to. The world we were born into is so corrupt and its systems so flawed and unequal we were never given a choice.
We have to be the change we seek.
We are Crypto Punks.
Either help us, or get out of our way.
Are you a Crypto Punk?
Franz Schrepf
3 years ago
What I Wish I'd Known About Web3 Before Building
Cryptoland rollercoaster
I've lost money in crypto.
Unimportant.
The real issue: I didn’t understand how.
I'm surrounded with winners. To learn more, I created my own NFTs, currency, and DAO.
Web3 is a hilltop castle. Everything is valuable, decentralized, and on-chain.
The castle is Disneyland: beautiful in images, but chaotic with lengthy lines and kids spending too much money on dressed-up animals.
When the throng and businesses are gone, Disneyland still has enchantment.
The Real Story of Web3
NFTs
Scarcity. Scarce NFTs. That's their worth.
Skull. Rare-looking!
Nonsense.
Bored Ape Yacht Club vs. my NFTs?
Marketing.
BAYC is amazing, but not for the reasons people believe. Apecoin and Otherside's art, celebrity following, and innovation? Stunning.
No other endeavor captured the zeitgeist better. Yet how long did you think it took to actually mint the NFTs?
1 hour? Maybe a week for the website?
Minting NFTs is incredibly easy. Kid-friendly. Developers are rare. Think about that next time somebody posts “DevS dO SMt!?”
NFTs will remain popular. These projects are like our Van Goghs and Monets. Still, be wary. It still uses exclusivity and wash selling like the OG art market.
Not all NFTs are art-related.
Soulbound and anonymous NFTs could offer up new use cases. Property rights, privacy-focused ID, open-source project verification. Everything.
NFTs build online trust through ownership.
We just need to evolve from the apes first.
NFTs' superpower is marketing until then.
Crypto currency
What the hell is a token?
99% of people are clueless.
So I invested in both coins and tokens. Same same. Only that they are not.
Coins have their own blockchain and developer/validator community. It's hard.
Creating a token on top of a blockchain? Five minutes.
Most consumers don’t understand the difference, creating an arbitrage opportunity: pretend you’re a serious project without having developers on your payroll.
Few market sites help. Take a look. See any tokens?
There's a hint one click deeper.
Some tokens are legitimate. Some coins are bad investments.
Tokens are utilized for DAO governance and DApp payments. Still, know who's behind a token. They might be 12 years old.
Coins take time and money. The recent LUNA meltdown indicates that currency investing requires research.
DAOs
Decentralized Autonomous Organizations (DAOs) don't work as you assume.
Yes, members can vote.
A productive organization requires more.
I've observed two types of DAOs.
Total decentralization total dysfunction
Centralized just partially. Community-driven.
A core team executes the DAO's strategy and roadmap in successful DAOs. The community owns part of the organization, votes on decisions, and holds the team accountable.
DAOs are public companies.
Amazing.
A shareholder meeting's logistics are staggering. DAOs may hold anonymous, secure voting quickly. No need for intermediaries like banks to chase up every shareholder.
Successful DAOs aren't totally decentralized. Large-scale voting and collaboration have never been easier.
And that’s all that matters.
Scale, speed.
My Web3 learnings
Disneyland is enchanting. Web3 too.
In a few cycles, NFTs may be used to build trust, not clout. Not speculating with coins. DAOs run organizations, not themselves.
Finally, some final thoughts:
NFTs will be a very helpful tool for building trust online. NFTs are successful now because of excellent marketing.
Tokens are not the same as coins. Look into any project before making a purchase. Make sure it isn't run by three 9-year-olds piled on top of one another in a trench coat, at the very least.
Not entirely decentralized, DAOs. We shall see a future where community ownership becomes the rule rather than the exception once we acknowledge this fact.
Crypto Disneyland is a rollercoaster with loops that make you sick.
Always buckle up.
Have fun!
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Maddie Wang
3 years ago
Easiest and fastest way to test your startup idea!
Here's the fastest way to validate company concepts.
I squandered a year after dropping out of Stanford designing a product nobody wanted.
But today, I’m at 100k!
Differences:
I was designing a consumer product when I dropped out.
I coded MVP, got 1k users, and got YC interview.
Nice, huh?
WRONG!
Still coding and getting users 12 months later
WOULD PEOPLE PAY FOR IT? was the riskiest assumption I hadn't tested.
When asked why I didn't verify payment, I said,
Not-ready products. Now, nobody cares. The website needs work. Include this. Increase usage…
I feared people would say no.
After 1 year of pushing it off, my team told me they were really worried about the Business Model. Then I asked my audience if they'd buy my product.
So?
No, overwhelmingly.
I felt like I wasted a year building a product no one would buy.
Founders Cafe was the opposite.
Before building anything, I requested payment.
40 founders were interviewed.
Then we emailed Stanford, YC, and other top founders, asking them to join our community.
BOOM! 10/12 paid!
Without building anything, in 1 day I validated my startup's riskiest assumption. NOT 1 year.
Asking people to pay is one of the scariest things.
I understand.
I asked Stanford queer women to pay before joining my gay sorority.
I was afraid I'd turn them off or no one would pay.
Gay women, like those founders, were in such excruciating pain that they were willing to pay me upfront to help.
You can ask for payment (before you build) to see if people have the burning pain. Then they'll pay!
Examples from Founders Cafe members:
😮 Using a fake landing page, a college dropout tested a product. Paying! He built it and made $3m!
😮 YC solo founder faked a Powerpoint demo. 5 Enterprise paid LOIs. $1.5m raised, built, and in YC!
😮 A Harvard founder can convert Figma to React. 1 day, 10 customers. Built a tool to automate Figma -> React after manually fulfilling requests. 1m+
Bad example:
😭 Stanford Dropout Spends 1 Year Building Product Without Payment Validation
Some people build for a year and then get paying customers.
What I'm sharing is my experience and what Founders Cafe members have told me about validating startup ideas.
Don't waste a year like I did.
After my first startup failed, I planned to re-enroll at Stanford/work at Facebook.
After people paid, I quit for good.
I've hit $100k!
Hope this inspires you to request upfront payment! It'll change your life
Nitin Sharma
3 years ago
The result of my side-hustle blog post with ChatGPT is remarkable.
It's free now.
Most content writers—including me—write about side hustles because they do well.
I wrote several articles on a profitable programming side hustle.
Later, I learnt about AI content-generating platforms like Jasper.ai and Copy.ai, which I thought were terrible because they required subscriptions and had bad content. Even I dislike automatic online posting.
Since ChatGPT is becoming more popular, I tried it. It's free now.
Note: I wasn’t compensated to write this piece by this tool. In other words, I don’t receive any payment from their founders. There is no affiliate link, and right now it is free to use. Also, ChatGPT can do a lot more than what I ever did.
Begin.
OpenAI account registration requires visiting the website (if you don’t have one). Just write anything into the chatbot and get a response.
First, I wrote about the top 10 2023 side businesses.
This came in seconds.
2023 is shaping up to be a year of growth and opportunity for entrepreneurs and side hustlers. With the rise of remote work and the growing gig economy, there are many income streams to consider launching in the coming year. Here are the top 10 income streams to launch in 2023:
Virtual Assistant — The demand for virtual assistants is on the rise as more businesses move online. As a virtual assistant, you can offer administrative, technical, or creative services to clients remotely.
Online Tutoring — If you have expertise in a particular subject, consider becoming an online tutor. There are many platforms that connect tutors with students looking for help with their studies.
Freelance Writing — If you have a knack for writing, consider becoming a freelance writer. You can offer your services to businesses, bloggers, and individuals looking for content for their websites or social media platforms.
Graphic Design — If you have a talent for design, consider starting a graphic design side hustle. You can create logos, banners, and other visual content for businesses and individuals.
Social Media Management — Many businesses are looking for help with managing their social media accounts. As a social media manager, you can help businesses create and execute social media strategies to reach their target audience.
Dropshipping — Dropshipping is a business model where you sell products without actually holding any inventory. You can partner with suppliers and ship the products directly to the customer on behalf of the business.
Pet Sitting — If you love animals, consider starting a pet-sitting side hustle. You can offer your services to pet owners who need someone to take care of their pets while they are away.
Home Cleaning — With busy schedules, many people are looking for help with cleaning their homes. As a home cleaning service provider, you can offer your services to help keep homes tidy and organized.
Event Planning — If you have a talent for organization and planning, consider starting an event planning side hustle. You can offer your services to help plan and execute events for businesses and individuals.
Online Teaching — With the rise of online education, there is a growing demand for online teachers. If you have expertise in a particular subject, consider becoming an online teacher and offer your services to students looking for personalized instruction.
In conclusion, 2023 is shaping up to be a great year for launching new income streams. Whether you are looking to start a virtual assistant business, become an online tutor, or offer home cleaning services, there are many opportunities to turn your skills and expertise into a profitable side hustle.
Better than most online side hustle posts, right?
Write about the top 10 programming side hustles to start in 2023.
I got this.
If you are a programmer looking to start a side hustle, 2023 is the perfect time to launch your own business. With the growing demand for software and app development, there are many opportunities for programmers to turn their skills into a profitable side hustle. Here are the top 10 programming side hustles to start in 2023:
App Development — With the rise of smartphones and tablets, there is a growing demand for app development. You can offer your services to businesses and individuals looking to create custom apps for their needs.
Website Development — Many businesses and individuals are looking for help with creating and maintaining their websites. As a website developer, you can offer your services to help design, build, and manage websites for your clients.
Software Development — If you have expertise in a particular programming language, consider starting a software development side hustle. You can offer your services to businesses and individuals looking to create custom software solutions for their needs.
Game Development — The gaming industry is thriving, and there is a growing demand for game development. If you have experience in game development, you can offer your services to businesses and individuals looking to create custom games.
Data Analysis — With the rise of big data, there is a growing demand for data analysts. As a data analyst, you can offer your services to businesses and individuals looking to make sense of their data and gain insights from it.
Machine Learning — Machine learning is a rapidly growing field, and there is a growing demand for machine learning experts. If you have experience in machine learning, you can offer your services to businesses and individuals looking to develop custom machine learning solutions.
Cloud Computing — With the rise of cloud computing, there is a growing demand for cloud experts. If you have experience in cloud computing, you can offer your services to businesses and individuals looking to migrate their applications and data to the cloud.
Blockchain Development — Blockchain technology is gaining popularity, and there is a growing demand for blockchain developers. If you have experience in blockchain development, you can offer your services to businesses and individuals looking to develop custom blockchain solutions.
Artificial Intelligence — Artificial intelligence is a rapidly growing field, and there is a growing demand for AI experts. If you have experience in artificial intelligence, you can offer your services to businesses and individuals looking to develop custom AI solutions.
Virtual Reality — Virtual reality is an exciting and emerging technology, and there is a growing demand for VR developers. If you have experience in VR development, you can offer your services to businesses and individuals looking to create custom VR experiences.
In conclusion, 2023 is a great time to start a programming side hustle. Whether you are interested in app development, website development, or machine learning, there are many opportunities for programmers to turn their skills into a profitable business.
These two blogs show that AI can simplify blog authoring.
I asked some tough programming questions, and most were suitable.
The content may occasionally not be what we want, but it will almost always be very helpful to you.
Enjoy.
wordsmithwriter
3 years ago
2023 Will Be the Year of Evernote and Craft Notetaking Apps.
Note-taking is a vital skill. But it's mostly learned.
Recently, innovative note-taking apps have flooded the market.
In the next few years, Evernote and Craft will be important digital note-taking companies.
Evernote is a 2008 note-taking program. It can capture ideas, track tasks, and organize information on numerous platforms.
It's one of the only note-taking app that lets users input text, audio, photos, and videos. It's great for collecting research notes, brainstorming, and remaining organized.
Craft is a popular note-taking app.
Craft is a more concentrated note-taking application than Evernote. It organizes notes into subjects, tags, and relationships, making it ideal for technical or research notes.
Craft's search engine makes it easy to find what you need.
Both Evernote and Craft are likely to be the major players in digital note-taking in the years to come.
Their concentration on gathering and organizing information lets users generate notes quickly and simply. Multimedia elements and a strong search engine make them the note-taking apps of the future.
Evernote and Craft are great note-taking tools for staying organized and tracking ideas and projects.
With their focus on acquiring and organizing information, they'll dominate digital note-taking in 2023.
Pros
Concentrate on gathering and compiling information
special features including a strong search engine and multimedia components
Possibility of subject, tag, and relationship structuring
enables users to incorporate multimedia elements
Excellent tool for maintaining organization, arranging research notes, and brainstorming
Cons
Software may be difficult for folks who are not tech-savvy to utilize.
Limited assistance for hardware running an outdated operating system
Subscriptions could be pricey.
Data loss risk because of security issues
Evernote and Craft both have downsides.
The risk of data loss as a result of security flaws and software defects comes first.
Additionally, their subscription fees could be high, and they might restrict support for hardware that isn't running the newest operating systems.
Finally, folks who need to be tech-savvy may find the software difficult.
Evernote versus. Productivity Titans Evernote will make Notion more useful. medium.com