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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
Vivek Singh
3 years ago
A Warm Welcome to Web3 and the Future of the Internet
Let's take a look back at the internet's history and see where we're going — and why.
Tim Berners Lee had a problem. He was at CERN, the world's largest particle physics factory, at the time. The institute's stated goal was to study the simplest particles with the most sophisticated scientific instruments. The institute completed the LEP Tunnel in 1988, a 27 kilometer ring. This was Europe's largest civil engineering project (to study smaller particles — electrons).
The problem Tim Berners Lee found was information loss, not particle physics. CERN employed a thousand people in 1989. Due to team size and complexity, people often struggled to recall past project information. While these obstacles could be overcome, high turnover was nearly impossible. Berners Lee addressed the issue in a proposal titled ‘Information Management'.
When a typical stay is two years, data is constantly lost. The introduction of new people takes a lot of time from them and others before they understand what is going on. An emergency situation may require a detective investigation to recover technical details of past projects. Often, the data is recorded but cannot be found. — Information Management: A Proposal
He had an idea. Create an information management system that allowed users to access data in a decentralized manner using a new technology called ‘hypertext'.
To quote Berners Lee, his proposal was “vague but exciting...”. The paper eventually evolved into the internet we know today. Here are three popular W3C standards used by billions of people today:
(credit: CERN)
HTML (Hypertext Markup)
A web formatting language.
URI (Unique Resource Identifier)
Each web resource has its own “address”. Known as ‘a URL'.
HTTP (Hypertext Transfer Protocol)
Retrieves linked resources from across the web.
These technologies underpin all computer work. They were the seeds of our quest to reorganize information, a task as fruitful as particle physics.
Tim Berners-Lee would probably think the three decades from 1989 to 2018 were eventful. He'd be amazed by the billions, the inspiring, the novel. Unlocking innovation at CERN through ‘Information Management'.
The fictional character would probably need a drink, walk, and a few deep breaths to fully grasp the internet's impact. He'd be surprised to see a few big names in the mix.
Then he'd say, "Something's wrong here."
We should review the web's history before going there. Was it a success after Berners Lee made it public? Web1 and Web2: What is it about what we are doing now that so many believe we need a new one, web3?
Per Outlier Ventures' Jamie Burke:
Web 1.0 was read-only.
Web 2.0 was the writable
Web 3.0 is a direct-write web.
Let's explore.
Web1: The Read-Only Web
Web1 was the digital age. We put our books, research, and lives ‘online'. The web made information retrieval easier than any filing cabinet ever. Massive amounts of data were stored online. Encyclopedias, medical records, and entire libraries were put away into floppy disks and hard drives.
In 2015, the web had around 305,500,000,000 pages of content (280 million copies of Atlas Shrugged).
Initially, one didn't expect to contribute much to this database. Web1 was an online version of the real world, but not yet a new way of using the invention.
One gets the impression that the web has been underutilized by historians if all we can say about it is that it has become a giant global fax machine. — Daniel Cohen, The Web's Second Decade (2004)
That doesn't mean developers weren't building. The web was being advanced by great minds. Web2 was born as technology advanced.
Web2: Read-Write Web
Remember when you clicked something on a website and the whole page refreshed? Is it too early to call the mid-2000s ‘the good old days'?
Browsers improved gradually, then suddenly. AJAX calls augmented CGI scripts, and applications began sending data back and forth without disrupting the entire web page. One button to ‘digg' a post (see below). Web experiences blossomed.
In 2006, Digg was the most active ‘Web 2.0' site. (Photo: Ethereum Foundation Taylor Gerring)
Interaction was the focus of new applications. Posting, upvoting, hearting, pinning, tweeting, liking, commenting, and clapping became a lexicon of their own. It exploded in 2004. Easy ways to ‘write' on the internet grew, and continue to grow.
Facebook became a Web2 icon, where users created trillions of rows of data. Google and Amazon moved from Web1 to Web2 by better understanding users and building products and services that met their needs.
Business models based on Software-as-a-Service and then managing consumer data within them for a fee have exploded.
Web2 Emerging Issues
Unbelievably, an intriguing dilemma arose. When creating this read-write web, a non-trivial question skirted underneath the covers. Who owns it all?
You have no control over [Web 2] online SaaS. People didn't realize this because SaaS was so new. People have realized this is the real issue in recent years.
Even if these organizations have good intentions, their incentive is not on the users' side.
“You are not their customer, therefore you are their product,” they say. With Laura Shin, Vitalik Buterin, Unchained
A good plot line emerges. Many amazing, world-changing software products quietly lost users' data control.
For example: Facebook owns much of your social graph data. Even if you hate Facebook, you can't leave without giving up that data. There is no ‘export' or ‘exit'. The platform owns ownership.
While many companies can pull data on you, you cannot do so.
On the surface, this isn't an issue. These companies use my data better than I do! A complex group of stakeholders, each with their own goals. One is maximizing shareholder value for public companies. Tim Berners-Lee (and others) dislike the incentives created.
“Show me the incentive and I will show you the outcome.” — Berkshire Hathaway's CEO
It's easy to see what the read-write web has allowed in retrospect. We've been given the keys to create content instead of just consume it. On Facebook and Twitter, anyone with a laptop and internet can participate. But the engagement isn't ours. Platforms own themselves.
Web3: The ‘Unmediated’ Read-Write Web
Tim Berners Lee proposed a decade ago that ‘linked data' could solve the internet's data problem.
However, until recently, the same principles that allowed the Web of documents to thrive were not applied to data...
The Web of Data also allows for new domain-specific applications. Unlike Web 2.0 mashups, Linked Data applications work with an unbound global data space. As new data sources appear on the Web, they can provide more complete answers.
At around the same time as linked data research began, Satoshi Nakamoto created Bitcoin. After ten years, it appears that Berners Lee's ideas ‘link' spiritually with cryptocurrencies.
What should Web 3 do?
Here are some quick predictions for the web's future.
Users' data:
Users own information and provide it to corporations, businesses, or services that will benefit them.
Defying censorship:
No government, company, or institution should control your access to information (1, 2, 3)
Connect users and platforms:
Create symbiotic rather than competitive relationships between users and platform creators.
Open networks:
“First, the cryptonetwork-participant contract is enforced in open source code. Their voices and exits are used to keep them in check.” Dixon, Chris (4)
Global interactivity:
Transacting value, information, or assets with anyone with internet access, anywhere, at low cost
Self-determination:
Giving you the ability to own, see, and understand your entire digital identity.
Not pull, push:
‘Push' your data to trusted sources instead of ‘pulling' it from others.
Where Does This Leave Us?
Change incentives, change the world. Nick Babalola
People believe web3 can help build a better, fairer system. This is not the same as equal pay or outcomes, but more equal opportunity.
It should be noted that some of these advantages have been discussed previously. Will the changes work? Will they make a difference? These unanswered questions are technical, economic, political, and philosophical. Unintended consequences are likely.
We hope Web3 is a more democratic web. And we think incentives help the user. If there’s one thing that’s on our side, it’s that open has always beaten closed, given a long enough timescale.
We are at the start.
joyce shen
3 years ago
Framework to Evaluate Metaverse and Web3
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.
The following frameworks can help analyze and understand new technologies and emerging technological topics, unless you are a significant investment fund with the financial ability to gamble on numerous initiatives and essentially form your own “index fund”.
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.
forkast
3 years ago
Three Arrows Capital collapse sends crypto tremors
Three Arrows Capital's Google search volume rose over 5,000%.
Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, filed for Chapter 15 bankruptcy last Friday to protect its U.S. assets from creditors.
Three Arrows filed for bankruptcy on July 1 in New York.
Three Arrows was ordered liquidated by a British Virgin Islands court last week after defaulting on a $670 million loan from Voyager Digital. Three days later, the Singaporean government reprimanded Three Arrows for spreading misleading information and exceeding asset limits.
Three Arrows' troubles began with Terra's collapse in May, after it bought US$200 million worth of Terra's LUNA tokens in February, co-founder Kyle Davies told the Wall Street Journal. Three Arrows has failed to meet multiple margin calls since then, including from BlockFi and Genesis.
Three Arrows Capital, founded by Kyle Davies and Su Zhu in 2012, manages $10 billion in crypto assets.
Bitcoin's price fell from US$20,600 to below US$19,200 after Three Arrows' bankruptcy petition. According to CoinMarketCap, BTC is now above US$20,000.
What does it mean?
Every action causes an equal and opposite reaction, per Newton's third law. Newtonian physics won't comfort Three Arrows investors, but future investors will thank them for their overconfidence.
Regulators are taking notice of crypto's meteoric rise and subsequent fall. Historically, authorities labeled the industry "high risk" to warn traditional investors against entering it. That attitude is changing. Regulators are moving quickly to regulate crypto to protect investors and prevent broader asset market busts.
The EU has reached a landmark deal that will regulate crypto asset sales and crypto markets across the 27-member bloc. The U.S. is close behind with a similar ruling, and smaller markets are also looking to improve safeguards.
For many, regulation is the only way to ensure the crypto industry survives the current winter.
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Sammy Abdullah
3 years ago
Payouts to founders at IPO
How much do startup founders make after an IPO? We looked at 2018's major tech IPOs. Paydays aren't what founders took home at the IPO (shares are normally locked up for 6 months), but what they were worth at the IPO price on the day the firm went public. It's not cash, but it's nice. Here's the data.
Several points are noteworthy.
Huge payoffs. Median and average pay were $399m and $918m. Average and median homeownership were 9% and 12%.
Coinbase, Uber, UI Path. Uber, Zoom, Spotify, UI Path, and Coinbase founders raised billions. Zoom's founder owned 19% and Spotify's 28% and 13%. Brian Armstrong controlled 20% of Coinbase at IPO and was worth $15bn. Preserving as much equity as possible by staying cash-efficient or raising at high valuations also helps.
The smallest was Ping. Ping's compensation was the smallest. Andre Duand owned 2% but was worth $20m at IPO. That's less than some billion-dollar paydays, but still good.
IPOs can be lucrative, as you can see. Preserving equity could be the difference between a $20mm and $15bln payday (Coinbase).
Claire Berehova
3 years ago
There’s no manual for that
| Kyiv oblast in springtime. Photo by author. |
We’ve been receiving since the war began text messages from the State Emergency Service of Ukraine every few days. They’ve contained information on how to comfort a child and what to do in case of a water outage.
But a question that I struggle to suppress irks within me: How would we know if there really was a threat coming our away? So how can I happily disregard an air raid siren and continue singing to my three-month-old son when I feel like a World War II film became reality? There’s no manual for that.
Along with the anxiety, there’s the guilt that always seems to appear alongside dinner we’re fortunate to still have each evening while brave Ukrainian soldiers are facing serious food insecurity. There’s no manual for how to deal with this guilt.
When it comes to the enemy, there is no manual for how to react to the news of Russian casualties. Every dead Russian soldier weakens Putin, but I also know that many of these men had wives and girlfriends who are now living a nightmare.
So, I felt like I had to start writing my own manual.
The anxiety around the air raid siren? Only with time does it get easier to ignore it, but never completely.
The guilt? All we can do is pray.
That inner conflict? As Russia continues to stun the world with its war crimes, my emotions get less gray — I have to get used to accommodating absurd levels of hatred.
Sadness? It feels a bit more manageable when we laugh, and a little alcohol helps (as it usually does).
Cabin fever? Step outside in the yard when possible. At least the sunshine is becoming more fervent with spring approaching.
Slava Ukraini. Heroyam slava. (Glory to Ukraine. Glory to the heroes.)
Nitin Sharma
2 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.