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:

1. An investment of money
2. n a common enterprise
3. With the expectation of profit
4. 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. 

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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Everywhere we turn, there's a new metaverse or Web3 debut. Microsoft recently announced a $68.7 BILLION cash purchase of Activision.

Like AI in 2013 and blockchain in 2014, NFT growth in 2021 feels like this year's metaverse and Web3 growth. We are all bombarded with information, conflicting signals, and a sensation of FOMO.

How can we evaluate the metaverse and Web3 in a noisy, new world? My framework for evaluating upcoming technologies and themes is shown below. I hope you will also find them helpful.

Understand the “pipes” in a new space. 

Whatever people say, Metaverse and Web3 will have to coexist with the current Internet. Companies who host, move, and store data over the Internet have a lot of intriguing use cases in Metaverse and Web3, whether in infrastructure, data analytics, or compliance. Hence the following point.

## Understand the apps layer and their infrastructure.

Gaming, crypto exchanges, and NFT marketplaces would not exist today if not for technology that enables rapid app creation. Yes, according to Chainalysis and other research, 30–40% of Ethereum is self-hosted, with the rest hosted by large cloud providers. For Microsoft to acquire Activision makes strategic sense. It's not only about the games, but also the infrastructure that supports them.

Follow the money

Understanding how money and wealth flow in a complex and dynamic environment helps build clarity. Unless you are exceedingly wealthy, you have limited ability to significantly engage in the Web3 economy today. Few can just buy 10 ETH and spend it in one day. You must comprehend who benefits from the process, and how that 10 ETH circulates now and possibly tomorrow. Major holders and players control supply and liquidity in any market. Today, most Web3 apps are designed to increase capital inflow so existing significant holders can utilize it to create a nascent Web3 economy. When you see a new Metaverse or Web3 application, remember how money flows.

What is the use case? 

What does the app do? If there is no clear use case with clear makers and consumers solving a real problem, then the euphoria soon fades, and the only stakeholders who remain enthused are those who have too much to lose.

Time is a major competition that is often overlooked.

We're only busier, but each day is still 24 hours. Using new apps may mean that time is lost doing other things. The user must be eager to learn. Metaverse and Web3 vs. our time?  I don't think we know the answer yet (at least for working adults whose cost of time is higher).
I don't think we know the answer yet (at least for working adults whose cost of time is higher).

People and organizations need security and transparency.

For new technologies or apps to be widely used, they must be safe, transparent, and trustworthy. What does secure Metaverse and Web3 mean? This is an intriguing subject for both the business and public sectors. Cloud adoption grew in part due to improved security and data protection regulations.

I write on VC, startups, and leadership.

More on https://www.linkedin.com/in/joycejshen/ and https://joyceshen.substack.com/

This writing is my own opinion and does not represent investment advice.

I've sold over 40,000 non-fiction books on Amazon and made over $160,000 in six years while writing on the side.

I have a full-time job and three young sons; I can't spend 40 hours a week writing. This article describes my journey.

I write mainly tech books:

Thanks to my readers, many wrote positive evaluations. Several are bestsellers.

A few have been adopted by universities as textbooks:

My books' passive income allows me more time with my family.

Knowing I could quit my job and write full time gave me more confidence. And I find purpose in my work (i am in christian ministry).

I'm always eager to write. When work is a dread or something bad happens, writing gives me energy. Writing isn't scary. In fact, I can’t stop myself from writing!

Writing has also established my tech authority. Universities use my books, as I've said. Traditional publishers have asked me to write books.

These mindsets helped me become a successful nonfiction author:

1. You don’t have to be an Authority

Yes, I have computer science experience. But I'm no expert on my topics. Before authoring "Beginning Node.js, Express & MongoDB," my most profitable book, I had no experience with those topics. Node was a new server-side technology for me. Would that stop me from writing a book? It can. I liked learning a new technology. So I read the top three Node books, took the top online courses, and put them into my own book (which makes me know more than 90 percent of people already).

I didn't have to worry about using too much jargon because I was learning as I wrote. An expert forgets a beginner's hardship.

2. Solve a micro-problem (Niching down)

I didn't set out to write a definitive handbook. I found a market with several challenges and wrote one book. Ex:

• Instead of web development, what about web development using Angular?
• Instead of Blockchain, what about Blockchain using Solidity and React?
• Instead of cooking recipes, how about a recipe for a specific kind of diet?
• Instead of Learning math, what about Learning Singapore Math?

3. Piggy Backing Trends

The above topics may still be a competitive market. E.g.  Angular, React.   To stand out, include the latest technologies or trends in your book. Learn iOS 15 instead of iOS programming. Instead of personal finance, what about personal finance with NFTs.

Even though you're a newbie author, your topic is well-known.

4. Publish short books

My books are known for being direct. Many people like this:

Your reader will appreciate you cutting out the fluff and getting to the good stuff. A reader can finish and review your book.

Second, short books are easier to write. Instead of creating a 500-page book for $50 (which few will buy), write a 100-page book that answers a subset of the problem and sell it for less. (You make less, but that's another subject). At least it got published instead of languishing. Less time spent creating a book means less time wasted if it fails. Write a small-bets book portfolio like Daniel Vassallo!

Third, it's $2.99-$9.99 on Amazon (gets 70 percent royalties for ebooks). Anything less receives 35% royalties. $9.99 books have 20,000–30,000 words. If you write more and charge more over $9.99, you get 35% royalties. Why not make it a $9.99 book?

(This is the ebook version.) Paperbacks cost more. Higher royalties allow for higher prices.

5. Validate book idea

Amazon will tell you if your book concept, title, and related phrases are popular. See? Check its best-sellers list.

150,000 is preferable. It sells 2–3 copies daily. Consider your rivals. Profitable niches have high demand and low competition.

Don't be afraid of competitive niches. First, it shows high demand. Secondly, what are the ways you can undercut the completion? Better book? Or cheaper option? There was lots of competition in my NodeJS book's area. None received 4.5 stars or more. I wrote a NodeJS book. Today, it's a best-selling Node book.

What’s Next

So long. Part II follows. Meanwhile, I will continue to write more books!

Follow my journey on Twitter.

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