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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
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More on Web3 & Crypto
Crypto Zen Monk
2 years ago
How to DYOR in the world of cryptocurrency
RESEARCH
We must create separate ideas and handle our own risks to be better investors. DYOR is crucial.
The only thing unsustainable is your cluelessness.
DYOR: Why
On social media, there is a lot of false information and divergent viewpoints. All of these facts might be accurate, but they might not be appropriate for your portfolio and investment preferences.
You become a more knowledgeable investor thanks to DYOR.
DYOR improves your portfolio's risk management.
My DYOR resources are below.
Messari: Major Blockchains' Activities
New York-based Messari provides cryptocurrency open data libraries.
Major blockchains offer 24-hour on-chain volume. https://messari.io/screener/most-active-chains-DB01F96B
What to do
Invest in stable cryptocurrencies. Sort Messari by Real Volume (24H) or Reported Market Cap.
Coingecko: Research on Ecosystems
Top 10 Ecosystems by Coingecko are good.
What to do
Invest in quality.
Leading ten Ecosystems by Market Cap
There are a lot of coins in the ecosystem (second last column of above chart)
CoinGecko's Market Cap Crypto Categories Market capitalization-based cryptocurrency categories. Ethereum Ecosystem www.coingecko.com
Fear & Greed Index for Bitcoin (FGI)
The Bitcoin market sentiment index ranges from 0 (extreme dread) to 100. (extreme greed).
How to Apply
See market sentiment:
Extreme fright = opportunity to buy
Extreme greed creates sales opportunity (market due for correction).
Glassnode
Glassnode gives facts, information, and confidence to make better Bitcoin, Ethereum, and cryptocurrency investments and trades.
Explore free and paid metrics.
Stock to Flow Ratio: Application
The popular Stock to Flow Ratio concept believes scarcity drives value. Stock to flow is the ratio of circulating Bitcoin supply to fresh production (i.e. newly mined bitcoins). The S/F Ratio has historically predicted Bitcoin prices. PlanB invented this metric.
Utilization: Ethereum Hash Rate
Ethereum miners produce an estimated number of hashes per second.
ycharts: Hash rate of the Bitcoin network
TradingView
TradingView is your go-to tool for investment analysis, watch lists, technical analysis, and recommendations from other traders/investors.
Research for a cryptocurrency project
Two key questions every successful project must ask: Q1: What is this project trying to solve? Is it a big problem or minor? Q2: How does this project make money?
Each cryptocurrency:
Check out the white paper.
check out the project's internet presence on github, twitter, and medium.
the transparency of it
Verify the team structure and founders. Verify their LinkedIn profile, academic history, and other qualifications. Search for their names with scam.
Where to purchase and use cryptocurrencies Is it traded on trustworthy exchanges?
From CoinGecko and CoinMarketCap, we may learn about market cap, circulations, and other important data.
The project must solve a problem. Solving a problem is the goal of the founders.
Avoid projects that resemble multi-level marketing or ponzi schemes.
Your use of social media
Use social media carefully or ignore it: Twitter, TradingView, and YouTube
Someone said this before and there are some truth to it. Social media bullish => short.
Your Behavior
Investigate. Spend time. You decide. Worth it!
Only you have the best interest in your financial future.
Jeff John Roberts
3 years ago
Jack Dorsey and Jay-Z Launch 'Bitcoin Academy' in Brooklyn rapper's home
The new Bitcoin Academy will teach Jay-Marcy Z's Houses neighbors "What is Cryptocurrency."
Jay-Z grew up in Brooklyn's Marcy Houses. The rapper and Block CEO Jack Dorsey are giving back to his hometown by creating the Bitcoin Academy.
The Bitcoin Academy will offer online and in-person classes, including "What is Money?" and "What is Blockchain?"
The program will provide participants with a mobile hotspot and a small amount of Bitcoin for hands-on learning.
Students will receive dinner and two evenings of instruction until early September. The Shawn Carter Foundation will help with on-the-ground instruction.
Jay-Z and Dorsey announced the program Thursday morning. It will begin at Marcy Houses but may be expanded.
Crypto Blockchain Plug and Black Bitcoin Billionaire, which has received a grant from Block, will teach the classes.
Jay-Z, Dorsey reunite
Jay-Z and Dorsey have previously worked together to promote a Bitcoin and crypto-based future.
In 2021, Dorsey's Block (then Square) acquired the rapper's streaming music service Tidal, which they propose using for NFT distribution.
Dorsey and Jay-Z launched an endowment in 2021 to fund Bitcoin development in Africa and India.
Dorsey is funding the new Bitcoin Academy out of his own pocket (as is Jay-Z), but he's also pushed crypto-related charitable endeavors at Block, including a $5 million fund backed by corporate Bitcoin interest.
This post is a summary. Read full article here
Sam Bourgi
3 years ago
DAOs are legal entities in Marshall Islands.
The Pacific island state recognizes decentralized autonomous organizations.
The Republic of the Marshall Islands has recognized decentralized autonomous organizations (DAOs) as legal entities, giving collectively owned and managed blockchain projects global recognition.
The Marshall Islands' amended the Non-Profit Entities Act 2021 that now recognizes DAOs, which are blockchain-based entities governed by self-organizing communities. Incorporating Admiralty LLC, the island country's first DAO, was made possible thanks to the amendement. MIDAO Directory Services Inc., a domestic organization established to assist DAOs in the Marshall Islands, assisted in the incorporation.
The new law currently allows any DAO to register and operate in the Marshall Islands.
“This is a unique moment to lead,” said Bobby Muller, former Marshall Islands chief secretary and co-founder of MIDAO. He believes DAOs will help create “more efficient and less hierarchical” organizations.
A global hub for DAOs, the Marshall Islands hopes to become a global hub for DAO registration, domicile, use cases, and mass adoption. He added:
"This includes low-cost incorporation, a supportive government with internationally recognized courts, and a technologically open environment."
According to the World Bank, the Marshall Islands is an independent island state in the Pacific Ocean near the Equator. To create a blockchain-based cryptocurrency that would be legal tender alongside the US dollar, the island state has been actively exploring use cases for digital assets since at least 2018.
In February 2018, the Marshall Islands approved the creation of a new cryptocurrency, Sovereign (SOV). As expected, the IMF has criticized the plan, citing concerns that a digital sovereign currency would jeopardize the state's financial stability. They have also criticized El Salvador, the first country to recognize Bitcoin (BTC) as legal tender.
Marshall Islands senator David Paul said the DAO legislation does not pose the same issues as a government-backed cryptocurrency. “A sovereign digital currency is financial and raises concerns about money laundering,” . This is more about giving DAOs legal recognition to make their case to regulators, investors, and consumers.
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Jenn Leach
3 years ago
I created a faceless TikTok account. Six months later.
Follower count, earnings, and more
I created my 7th TikTok account six months ago. TikTok's great. I've developed accounts for Amazon products, content creators/brand deals education, website flipping, and more.
Introverted or shy people use faceless TikTok accounts.
Maybe they don't want millions of people to see their face online, or they want to remain anonymous so relatives and friends can't locate them.
Going faceless on TikTok can help you grow a following, communicate your message, and make money online.
Here are 6 steps I took to turn my Tik Tok account into a $60,000/year side gig.
From nothing to $60K in 6 months
It's clickbait, but it’s true. Here’s what I did to get here.
Quick context:
I've used social media before. I've spent years as a social creator and brand.
I've built Instagram, TikTok, and YouTube accounts to nearly 100K.
How I did it
First, select a niche.
If you can focus on one genre on TikTok, you'll have a better chance of success, however lifestyle creators do well too.
Niching down is easier, in my opinion.
Examples:
Travel
Food
Kids
Earning cash
Finance
You can narrow these niches if you like.
During the pandemic, a travel blogger focused on Texas-only tourism and gained 1 million subscribers.
Couponing might be a finance specialization.
One of my finance TikTok accounts gives credit tips and grants and has 23K followers.
Tons of ways you can get more specific.
Consider how you'll monetize your TikTok account. I saw many enormous TikTok accounts that lose money.
Why?
They can't monetize their niche. Not impossible to commercialize, but tough enough to inhibit action.
First, determine your goal.
In this first step, consider what your end goal is.
Are you trying to promote your digital products or social media management services?
You want brand deals or e-commerce sales.
This will affect your TikTok specialty.
This is the first step to a TikTok side gig.
Step 2: Pick a content style
Next, you want to decide on your content style.
Do you do voiceover and screenshots?
You'll demonstrate a product?
Will you faceless vlog?
Step 3: Look at the competition
Find anonymous accounts and analyze what content works, where they thrive, what their audience wants, etc.
This can help you make better content.
Like the skyscraper method for TikTok.
Step 4: Create a content strategy.
Your content plan is where you sit down and decide:
How many videos will you produce each day or each week?
Which links will you highlight in your biography?
What amount of time can you commit to this project?
You may schedule when to post videos on a calendar. Make videos.
5. Create videos.
No video gear needed.
Using a phone is OK, and I think it's preferable than posting drafts from a computer or phone.
TikTok prefers genuine material.
Use their app, tools, filters, and music to make videos.
And imperfection is preferable. Tik okers like to see videos made in a bedroom, not a film studio.
Make sense?
When making videos, remember this.
I personally use my phone and tablet.
Step 6: Monetize
Lastly, it’s time to monetize How will you make money? You decided this in step 1.
Time to act!
For brand agreements
Include your email in the bio.
Share several sites and use a beacons link in your bio.
Make cold calls to your favorite companies to get them to join you in a TikTok campaign.
For e-commerce
Include a link to your store's or a product's page in your bio.
For client work
Include your email in the bio.
Use a beacons link to showcase your personal website, portfolio, and other resources.
For affiliate marketing
Include affiliate product links in your bio.
Join the Amazon Influencer program and provide a link to your storefront in your bio.
$60,000 per year from Tik Tok?
Yes, and some creators make much more.
Tori Dunlap (herfirst100K) makes $100,000/month on TikTok.
My TikTok adventure took 6 months, but by month 2 I was making $1,000/month (or $12K/year).
By year's end, I want this account to earn $100K/year.
Imagine if my 7 TikTok accounts made $100K/year.
7 Tik Tok accounts X $100K/yr = $700,000/year
Emma Jade
3 years ago
6 hacks to create content faster
Content gurus' top time-saving hacks.
I'm a content strategist, writer, and graphic designer. Time is more valuable than money.
Money is always available. Even if you're poor. Ways exist.
Time is passing, and one day we'll run out.
Sorry to be morbid.
In today's digital age, you need to optimize how you create content for your organization. Here are six content creation hacks.
1. Use templates
Use templates to streamline your work whether generating video, images, or documents.
Setup can take hours. Using a free resource like Canva, you can create templates for any type of material.
This will save you hours each month.
2. Make a content calendar
You post without a plan? A content calendar solves 50% of these problems.
You can prepare, organize, and plan your material ahead of time so you're not scrambling when you remember, "Shit, it's Mother's Day!"
3. Content Batching
Batching content means creating a lot in one session. This is helpful for video content that requires a lot of setup time.
Batching monthly content saves hours. Time is a valuable resource.
When working on one type of task, it's easy to get into a flow state. This saves time.
4. Write Caption
On social media, we generally choose the image first and then the caption. Writing captions first sometimes work better, though.
Writing the captions first can allow you more creative flexibility and be easier if you're not excellent with language.
Say you want to tell your followers something interesting.
Writing a caption first is easier than choosing an image and then writing a caption to match.
Not everything works. You may have already-created content that needs captioning. When you don't know what to share, think of a concept, write the description, and then produce a video or graphic.
Cats can be skinned in several ways..
5. Repurpose
Reuse content when possible. You don't always require new stuff. In fact, you’re pretty stupid if you do #SorryNotSorry.
Repurpose old content. All those blog entries, videos, and unfinished content on your desk or hard drive.
This blog post can be turned into a social media infographic. Canva's motion graphic function can animate it. I can record a YouTube video regarding this issue for a podcast. I can make a post on each point in this blog post and turn it into an eBook or paid course.
And it doesn’t stop there.
My point is, to think outside the box and really dig deep into ways you can leverage the content you’ve already created.
6. Schedule Them
If you're still manually posting content, get help. When you batch your content, schedule it ahead of time.
Some scheduling apps are free or cheap. No excuses.
Don't publish and ghost.
Scheduling saves time by preventing you from doing it manually. But if you never engage with your audience, the algorithm won't reward your material.
Be online and engage your audience.
Content Machine
Use these six content creation hacks. They help you succeed and save time.
Max Chafkin
3 years ago
Elon Musk Bets $44 Billion on Free Speech's Future
Musk’s purchase of Twitter has sealed his bond with the American right—whether the platform’s left-leaning employees and users like it or not.
Elon Musk's pursuit of Twitter Inc. began earlier this month as a joke. It started slowly, then spiraled out of control, culminating on April 25 with the world's richest man agreeing to spend $44 billion on one of the most politically significant technology companies ever. There have been bigger financial acquisitions, but Twitter's significance has always outpaced its balance sheet. This is a unique Silicon Valley deal.
To recap: Musk announced in early April that he had bought a stake in Twitter, citing the company's alleged suppression of free speech. His complaints were vague, relying heavily on the dog whistles of the ultra-right. A week later, he announced he'd buy the company for $54.20 per share, four days after initially pledging to join Twitter's board. Twitter's directors noticed the 420 reference as well, and responded with a “shareholder rights” plan (i.e., a poison pill) that included a 420 joke.
Musk - Patrick Pleul/Getty Images
No one knew if the bid was genuine. Musk's Twitter plans seemed implausible or insincere. In a tweet, he referred to automated accounts that use his name to promote cryptocurrency. He enraged his prospective employees by suggesting that Twitter's San Francisco headquarters be turned into a homeless shelter, renaming the company Titter, and expressing solidarity with his growing conservative fan base. “The woke mind virus is making Netflix unwatchable,” he tweeted on April 19.
But Musk got funding, and after a frantic weekend of negotiations, Twitter said yes. Unlike most buyouts, Musk will personally fund the deal, putting up up to $21 billion in cash and borrowing another $12.5 billion against his Tesla stock.
Free Speech and Partisanship
Percentage of respondents who agree with the following
The deal is expected to replatform accounts that were banned by Twitter for harassing others, spreading misinformation, or inciting violence, such as former President Donald Trump's account. As a result, Musk is at odds with his own left-leaning employees, users, and advertisers, who would prefer more content moderation rather than less.
Dorsey - Photographer: Joe Raedle/Getty Images
Previously, the company's leadership had similar issues. Founder Jack Dorsey stepped down last year amid concerns about slowing growth and product development, as well as his dual role as CEO of payments processor Block Inc. Compared to Musk, a father of seven who already runs four companies (besides Tesla and SpaceX), Dorsey is laser-focused.
Musk's motivation to buy Twitter may be political. Affirming the American far right with $44 billion spent on “free speech” Right-wing activists have promoted a series of competing upstart Twitter competitors—Parler, Gettr, and Trump's own effort, Truth Social—since Trump was banned from major social media platforms for encouraging rioters at the US Capitol on Jan. 6, 2021. But Musk can give them a social network with lax content moderation and a real user base. Trump said he wouldn't return to Twitter after the deal was announced, but he wouldn't be the first to do so.
Trump - Eli Hiller/Bloomberg
Conservative activists and lawmakers are already ecstatic. “A great day for free speech in America,” said Missouri Republican Josh Hawley. The day the deal was announced, Tucker Carlson opened his nightly Fox show with a 10-minute laudatory monologue. “The single biggest political development since Donald Trump's election in 2016,” he gushed over Musk.
But Musk's supporters and detractors misunderstand how much his business interests influence his political ideology. He marketed Tesla's cars as carbon-saving machines that were faster and cooler than gas-powered luxury cars during George W. Bush's presidency. Musk gained a huge following among wealthy environmentalists who reserved hundreds of thousands of Tesla sedans years before they were made during Barack Obama's presidency. Musk in the Trump era advocated for a carbon tax, but he also fought local officials (and his own workers) over Covid rules that slowed the reopening of his Bay Area factory.
Teslas at the Las Vegas Convention Center Loop Central Station in April 2021. The Las Vegas Convention Center Loop was Musk's first commercial project. Ethan Miller/Getty Images
Musk's rightward shift matched the rise of the nationalist-populist right and the desire to serve a growing EV market. In 2019, he unveiled the Cybertruck, a Tesla pickup, and in 2018, he announced plans to manufacture it at a new plant outside Austin. In 2021, he decided to move Tesla's headquarters there, citing California's "land of over-regulation." After Ford and General Motors beat him to the electric truck market, Musk reframed Tesla as a company for pickup-driving dudes.
Similarly, his purchase of Twitter will be entwined with his other business interests. Tesla has a factory in China and is friendly with Beijing. This could be seen as a conflict of interest when Musk's Twitter decides how to treat Chinese-backed disinformation, as Amazon.com Inc. founder Jeff Bezos noted.
Musk has focused on Twitter's product and social impact, but the company's biggest challenges are financial: Either increase cash flow or cut costs to comfortably service his new debt. Even if Musk can't do that, he can still benefit from the deal. He has recently used the increased attention to promote other business interests: Boring has hyperloops and Neuralink brain implants on the way, Musk tweeted. Remember Tesla's long-promised robotaxis!
Musk may be comfortable saying he has no expectation of profit because it benefits his other businesses. At the TED conference on April 14, Musk insisted that his interest in Twitter was solely charitable. “I don't care about money.”
The rockets and weed jokes make it easy to see Musk as unique—and his crazy buyout will undoubtedly add to that narrative. However, he is a megabillionaire who is risking a small amount of money (approximately 13% of his net worth) to gain potentially enormous influence. Musk makes everything seem new, but this is a rehash of an old media story.