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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
Koji Mochizuki
3 years ago
How to Launch an NFT Project by Yourself
Creating 10,000 auto-generated artworks, deploying a smart contract to the Ethereum / Polygon blockchain, setting up some tools, etc.
There is so much to do from launching to running an NFT project. Creating parts for artworks, generating 10,000 unique artworks and metadata, creating a smart contract and deploying it to a blockchain network, creating a website, creating a Twitter account, setting up a Discord server, setting up an OpenSea collection. In addition, you need to have MetaMask installed in your browser and have some ETH / MATIC. Did you get tired of doing all this? Don’t worry, once you know what you need to do, all you have to do is do it one by one.
To be honest, it’s best to run an NFT project in a team of three or more, including artists, developers, and marketers. However, depending on your motivation, you can do it by yourself. Some people might come later to offer help with your project. The most important thing is to take a step as soon as possible.
Creating Parts for Artworks
There are lots of free/paid software for drawing, but after all, I think Adobe Illustrator or Photoshop is the best. The images of Skulls In Love are a composite of 48x48 pixel parts created using Photoshop.
The most important thing in creating parts for generative art is to repeatedly test what your artworks will look like after each layer has been combined. The generated artworks should not be too unnatural.
How Many Parts Should You Create?
Are you wondering how many parts you should create to avoid duplication as much as possible when generating your artworks? My friend Stephane, a developer, has created a great tool to help with that.
Generating 10,000 Unique Artworks and Metadata
I highly recommend using the HashLips Art Engine to generate your artworks and metadata. Perhaps there is no better artworks generation tool at the moment.
GitHub: https://github.com/HashLips/hashlips_art_engine
YouTube:
Storing Artworks and Metadata
Ideally, the generated artworks and metadata should be stored on-chain, but if you want to store them off-chain, you should use IPFS. Do not store in centralized storage. This is because data will be lost if the server goes down or if the company goes down. On the other hand, IPFS is a more secure way to find data because it utilizes a distributed, decentralized system.
Storing to IPFS is easy with Pinata, NFT.Storage, and so on. The Skulls In Love uses Pinata. It’s very easy to use, just upload the folder containing your artworks.
Creating and Deploying a Smart Contract
You don’t have to create a smart contract from scratch. There are many great NFT projects, many of which publish their contract source code on Etherscan / PolygonScan. You can choose the contract you like and reuse it. Of course, that requires some knowledge of Solidity, but it depends on your efforts. If you don’t know which contract to choose, use the HashLips smart contract. It’s very simple, but it has almost all the functions you need.
GitHub: https://github.com/HashLips/hashlips_nft_contract
Note: Later on, you may want to change the cost value. You can change it on Remix or Etherscan / PolygonScan. But in this case, enter the Wei value instead of the Ether value. For example, if you want to sell for 1 MATIC, you have to enter “1000000000000000000”. If you set this value to “1”, you will have a nightmare. I recommend using Simple Unit Converter as a tool to calculate the Wei value.
Creating a Website
The website here is not just a static site to showcase your project, it’s a so-called dApp that allows you to access your smart contract and mint NFTs. In fact, this level of dApp is not too difficult for anyone who has ever created a website. Because the ethers.js / web3.js libraries make it easy to interact with your smart contract. There’s also no problem connecting wallets, as MetaMask has great documentation.
The Skulls In Love uses a simple, fast, and modern dApp that I built from scratch using Next.js. It is published on GitHub, so feel free to use it.
Why do people mint NFTs on a website?
Ethereum’s gas fees are high, so if you mint all your NFTs, there will be a huge initial cost. So it makes sense to get the buyers to help with the gas fees for minting.
What about Polygon? Polygon’s gas fees are super cheap, so even if you mint 10,000 NFTs, it’s not a big deal. But we don’t do that. Since NFT projects are a kind of game, it involves the fun of not knowing what will come out after minting.
Creating a Twitter Account
I highly recommend creating a Twitter account. Twitter is an indispensable tool for announcing giveaways and reaching more people. It’s better to announce your project and your artworks little by little, 1–2 weeks before launching your project.
Creating and Setting Up a Discord Server
I highly recommend creating a Discord server as well as a Twitter account. The Discord server is a community and its home. Fans of your NFT project will want to join your community and interact with many other members. So, carefully create each channel on your Discord server to make it a cozy place for your community members.
If you are unfamiliar with Discord, you may be particularly confused by the following:
What bots should I use?
How should I set roles and permissions?
But don’t worry. There are lots of great YouTube videos and blog posts about these.
It’s also a good idea to join the Discord servers of some NFT projects and see how they’re made. Our Discord server is so simple that even beginners will find it easy to understand. Please join us and see it!
Note: First, create a test account and a test server to make sure your bots and permissions work properly. It is better to verify the behavior on the test server before setting up your production server.
UPDATED: As your Discord server grows, you cannot manage it on your own. In this case, you will be hiring several moderators, but choose carefully before hiring. And don’t give them important role permissions right after hiring. Initially, the same permissions as other members are sufficient. After a while, you can add permissions as needed, such as kicking/banning, using the “@every” tag, and adding roles. Again, don’t immediately give significant permissions to your Mod role. Your server can be messed up by fake moderators.
Setting Up Your OpenSea Collection
Before you start selling your NFTs, you need to reserve some for airdrops, giveaways, staff, and more. It’s up to you whether it’s 100, 500, or how many.
After minting some of your NFTs, your account and collection should have been created in OpenSea. Go to OpenSea, connect to your wallet, and set up your collection. Just set your logo, banner image, description, links, royalties, and more. It’s not that difficult.
Promoting Your Project
After all, promotion is the most important thing. In fact, almost every successful NFT project spends a lot of time and effort on it.
In addition to Twitter and Discord, it’s even better to use Instagram, Reddit, and Medium. Also, register your project in NFTCalendar and DISBOARD
DISBOARD is the public Discord server listing community.
About Promoters
You’ll probably get lots of contacts from promoters on your Discord, Twitter, Instagram, and more. But most of them are scams, so don’t pay right away. If you have a promoter that looks attractive to you, be sure to check the promoter’s social media accounts or website to see who he/she is. They basically charge in dollars. The amount they charge isn’t cheap, but promoters with lots of followers may have some temporary effect on your project. Some promoters accept 50% prepaid and 50% postpaid. If you can afford it, it might be worth a try. I never ask them, though.
When Should the Promotion Activities Start?
You may be worried that if you promote your project before it starts, someone will copy your project (artworks). It is true that some projects have actually suffered such damage. I don’t have a clear answer to this question right now, but:
- Do not publish all the information about your project too early
- The information should be released little by little
- Creating artworks that no one can easily copy
I think these are important.
If anyone has a good idea, please share it!
About Giveaways
When hosting giveaways, you’ll probably use multiple social media platforms. You may want to grow your Discord server faster. But if joining the Discord server is included in the giveaway requirements, some people hate it. I recommend holding giveaways for each platform. On Twitter and Reddit, you should just add the words “Discord members-only giveaway is being held now! Please join us if you like!”.
If you want to easily pick a giveaway winner in your browser, I recommend Twitter Picker.
Precautions for Distributing Free NFTs
If you want to increase your Twitter followers and Discord members, you can actually get a lot of people by holding events such as giveaways and invite contests. However, distributing many free NFTs at once can be dangerous. Some people who want free NFTs, as soon as they get a free one, sell it at a very low price on marketplaces such as OpenSea. They don’t care about your project and are only thinking about replacing their own “free” NFTs with Ethereum. The lower the floor price of your NFTs, the lower the value of your NFTs (project). Try to think of ways to get people to “buy” your NFTs as much as possible.
Ethereum vs. Polygon
Even though Ethereum has high gas fees, NFT projects on the Ethereum network are still mainstream and popular. On the other hand, Polygon has very low gas fees and fast transaction processing, but NFT projects on the Polygon network are not very popular.
Why? There are several reasons, but the biggest one is that it’s a lot of work to get MATIC (on Polygon blockchain, use MATIC instead of ETH) ready to use. Simply put, you need to bridge your tokens to the Polygon chain. So people need to do this first before minting your NFTs on your website. It may not be a big deal for those who are familiar with crypto and blockchain, but it may be complicated for those who are not. I hope that the tedious work will be simplified in the near future.
If you are confident that your NFTs will be purchased even if they are expensive, or if the total supply of your NFTs is low, you may choose Ethereum. If you just want to save money, you should choose Polygon. Keep in mind that gas fees are incurred not only when minting, but also when performing some of your smart contract functions and when transferring your NFTs.
If I were to launch a new NFT project, I would probably choose Ethereum or Solana.
Conclusion
Some people may want to start an NFT project to make money, but don’t forget to enjoy your own project. Several months ago, I was playing with creating generative art by imitating the CryptoPunks. I found out that auto-generated artworks would be more interesting than I had imagined, and since then I’ve been completely absorbed in generative art.
This is one of the Skulls In Love artworks:
This character wears a cowboy hat, black slim sunglasses, and a kimono. If anyone looks like this, I can’t help laughing!
The Skulls In Love NFTs can be minted for a small amount of MATIC on the official website. Please give it a try to see what kind of unique characters will appear 💀💖
Thank you for reading to the end. I hope this article will be helpful to those who want to launch an NFT project in the future ✨
Ryan Weeks
3 years ago
Terra fiasco raises TRON's stablecoin backstop
After Terra's algorithmic stablecoin collapsed in May, TRON announced a plan to increase the capital backing its own stablecoin.
USDD, a near-carbon copy of Terra's UST, arrived on the TRON blockchain on May 5. TRON founder Justin Sun says USDD will be overcollateralized after initially being pegged algorithmically to the US dollar.
A reserve of cryptocurrencies and stablecoins will be kept at 130 percent of total USDD issuance, he said. TRON described the collateral ratio as "guaranteed" and said it would begin publishing real-time updates on June 5.
Currently, the reserve contains 14,040 bitcoin (around $418 million), 140 million USDT, 1.9 billion TRX, and 8.29 billion TRX in a burning contract.
Sun: "We want to hybridize USDD." We have an algorithmic stablecoin and TRON DAO Reserve.
algorithmic failure
USDD was designed to incentivize arbitrageurs to keep its price pegged to the US dollar by trading TRX, TRON's token, and USDD. Like Terra, TRON signaled its intent to establish a bitcoin and cryptocurrency reserve to support USDD in extreme market conditions.
Still, Terra's UST failed despite these safeguards. The stablecoin veered sharply away from its dollar peg in mid-May, bringing down Terra's LUNA and wiping out $40 billion in value in days. In a frantic attempt to restore the peg, billions of dollars in bitcoin were sold and unprecedented volumes of LUNA were issued.
Sun believes USDD, which has a total circulating supply of $667 million, can be backed up.
"Our reserve backing is diversified." Bitcoin and stablecoins are included. USDC will be a small part of Circle's reserve, he said.
TRON's news release lists the reserve's assets as bitcoin, TRX, USDC, USDT, TUSD, and USDJ.
All Bitcoin addresses will be signed so everyone knows they belong to us, Sun said.
Not giving in
Sun told that the crypto industry needs "decentralized" stablecoins that regulators can't touch.
Sun said the Luna Foundation Guard, a Singapore-based non-profit that raised billions in cryptocurrency to buttress UST, mismanaged the situation by trying to sell to panicked investors.
He said, "We must be ahead of the market." We want to stabilize the market and reduce volatility.
Currently, TRON finances most of its reserve directly, but Sun says the company hopes to add external capital soon.
Before its demise, UST holders could park the stablecoin in Terra's lending platform Anchor Protocol to earn 20% interest, which many deemed unsustainable. TRON's JustLend is similar. Sun hopes to raise annual interest rates from 17.67% to "around 30%."
This post is a summary. Read full article here
Sam Bourgi
3 years ago
NFT was used to serve a restraining order on an anonymous hacker.
The international law firm Holland & Knight used an NFT built and airdropped by its asset recovery team to serve a defendant in a hacking case.
The law firms Holland & Knight and Bluestone used a nonfungible token to serve a defendant in a hacking case with a temporary restraining order, marking the first documented legal process assisted by an NFT.
The so-called "service token" or "service NFT" was served to an unknown defendant in a hacking case involving LCX, a cryptocurrency exchange based in Liechtenstein that was hacked for over $8 million in January. The attack compromised the platform's hot wallets, resulting in the loss of Ether (ETH), USD Coin (USDC), and other cryptocurrencies, according to Cointelegraph at the time.
On June 7, LCX claimed that around 60% of the stolen cash had been frozen, with investigations ongoing in Liechtenstein, Ireland, Spain, and the United States. Based on a court judgment from the New York Supreme Court, Centre Consortium, a company created by USDC issuer Circle and crypto exchange Coinbase, has frozen around $1.3 million in USDC.
The monies were laundered through Tornado Cash, according to LCX, but were later tracked using "algorithmic forensic analysis." The organization was also able to identify wallets linked to the hacker as a result of the investigation.
In light of these findings, the law firms representing LCX, Holland & Knight and Bluestone, served the unnamed defendant with a temporary restraining order issued on-chain using an NFT. According to LCX, this system "was allowed by the New York Supreme Court and is an example of how innovation can bring legitimacy and transparency to a market that some say is ungovernable."
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Will Lockett
3 years ago
Russia's nukes may be useless
Russia's nuclear threat may be nullified by physics.
Putin seems nostalgic and wants to relive the Cold War. He's started a deadly war to reclaim the old Soviet state of Ukraine and is threatening the West with nuclear war. NATO can't risk starting a global nuclear war that could wipe out humanity to support Ukraine's independence as much as they want to. Fortunately, nuclear physics may have rendered Putin's nuclear weapons useless. However? How will Ukraine and NATO react?
To understand why Russia's nuclear weapons may be ineffective, we must first know what kind they are.
Russia has the world's largest nuclear arsenal, with 4,447 strategic and 1,912 tactical weapons (all of which are ready to be rolled out quickly). The difference between these two weapons is small, but it affects their use and logistics. Strategic nuclear weapons are ICBMs designed to destroy a city across the globe. Russia's ICBMs have many designs and a yield of 300–800 kilotonnes. 300 kilotonnes can destroy Washington. Tactical nuclear weapons are smaller and can be fired from artillery guns or small truck-mounted missile launchers, giving them a 1,500 km range. Instead of destroying a distant city, they are designed to eliminate specific positions, bases, or military infrastructure. They produce 1–50 kilotonnes.
These two nuclear weapons use different nuclear reactions. Pure fission bombs are compact enough to fit in a shell or small missile. All early nuclear weapons used this design for their fission bombs. This technology is inefficient for bombs over 50 kilotonnes. Larger bombs are thermonuclear. Thermonuclear weapons use a small fission bomb to compress and heat a hydrogen capsule, which undergoes fusion and releases far more energy than ignition fission reactions, allowing for effective giant bombs.
Here's Russia's issue.
A thermonuclear bomb needs deuterium (hydrogen with one neutron) and tritium (hydrogen with two neutrons). Because these two isotopes fuse at lower energies than others, the bomb works. One problem. Tritium is highly radioactive, with a half-life of only 12.5 years, and must be artificially made.
Tritium is made by irradiating lithium in nuclear reactors and extracting the gas. Tritium is one of the most expensive materials ever made, at $30,000 per gram.
Why does this affect Putin's nukes?
Thermonuclear weapons need tritium. Tritium decays quickly, so they must be regularly refilled at great cost, which Russia may struggle to do.
Russia has a smaller economy than New York, yet they are running an invasion, fending off international sanctions, and refining tritium for 4,447 thermonuclear weapons.
The Russian military is underfunded. Because the state can't afford it, Russian troops must buy their own body armor. Arguably, Putin cares more about the Ukraine conflict than maintaining his nuclear deterrent. Putin will likely lose power if he loses the Ukraine war.
It's possible that Putin halted tritium production and refueling to save money for Ukraine. His threats of nuclear attacks and escalating nuclear war may be a bluff.
This doesn't help Ukraine, sadly. Russia's tactical nuclear weapons don't need expensive refueling and will help with the invasion. So Ukraine still risks a nuclear attack. The bomb that destroyed Hiroshima was 15 kilotonnes, and Russia's tactical Iskander-K nuclear missile has a 50-kiloton yield. Even "little" bombs are deadly.
We can't guarantee it's happening in Russia. Putin may prioritize tritium. He knows the power of nuclear deterrence. Russia may have enough tritium for this conflict. Stockpiling a material with a short shelf life is unlikely, though.
This means that Russia's most powerful weapons may be nearly useless, but they may still be deadly. If true, this could allow NATO to offer full support to Ukraine and push the Russian tyrant back where he belongs. If Putin withholds funds from his crumbling military to maintain his nuclear deterrent, he may be willing to sink the ship with him. Let's hope the former.
Nojus Tumenas
3 years ago
NASA: Strange Betelgeuse Explosion Just Took Place
Orion's red supergiant Betelgeuse erupted. This is astronomers' most magnificent occurrence.
Betelgeuse, a supergiant star in Orion, garnered attention in 2019 for its peculiar appearance. It continued to dim in 2020.
The star was previously thought to explode as a supernova. Studying the event has revealed what happened to Betelgeuse since it happened.
Astronomers saw that the star released a large amount of material, causing it to lose a section of its surface.
They have never seen anything like this and are unsure what caused the star to release so much material.
According to Harvard-Smithsonian Center for Astrophysics astrophysicist Andrea Dupre, astronomers' data reveals an unexplained mystery.
They say it's a new technique to examine star evolution. The James Webb telescope revealed the star's surface features.
Corona flares are stellar mass ejections. These eruptions change the Sun's outer atmosphere.
This could affect power grids and satellite communications if it hits Earth.
Betelgeuse's flare ejected four times more material than the Sun's corona flare.
Astronomers have monitored star rhythms for 50 years. They've seen its dimming and brightening cycle start, stop, and repeat.
Monitoring Betelgeuse's pulse revealed the eruption's power.
Dupre believes the star's convection cells are still amplifying the blast's effects, comparing it to an imbalanced washing machine tub.
The star's outer layer has returned to normal, Hubble data shows. The photosphere slowly rebuilds its springy surface.
Dupre noted the star's unusual behavior. For instance, it’s causing its interior to bounce.
This suggests that the mass ejections that caused the star's surface to lose mass were two separate processes.
Researchers hope to better understand star mass ejection with the James Webb Space Telescope.
Jared Heyman
2 years ago
The survival and demise of Y Combinator startups
I've written a lot about Y Combinator's success, but as any startup founder or investor knows, many startups fail.
Rebel Fund invests in the top 5-10% of new Y Combinator startups each year, so we focus on identifying and supporting the most promising technology startups in our ecosystem. Given the power law dynamic and asymmetric risk/return profile of venture capital, we worry more about our successes than our failures. Since the latter still counts, this essay will focus on the proportion of YC startups that fail.
Since YC's launch in 2005, the figure below shows the percentage of active, inactive, and public/acquired YC startups by batch.
As more startups finish, the blue bars (active) decrease significantly. By 12 years, 88% of startups have closed or exited. Only 7% of startups reach resolution each year.
YC startups by status after 12 years:
Half the startups have failed, over one-third have exited, and the rest are still operating.
In venture investing, it's said that failed investments show up before successful ones. This is true for YC startups, but only in their early years.
Below, we only present resolved companies from the first chart. Some companies fail soon after establishment, but after a few years, the inactive vs. public/acquired ratio stabilizes around 55:45. After a few years, a YC firm is roughly as likely to quit as fail, which is better than I imagined.
I prepared this post because Rebel investors regularly question me about YC startup failure rates and how long it takes for them to exit or shut down.
Early-stage venture investors can overlook it because 100x investments matter more than 0x investments.
YC founders can ignore it because it shouldn't matter if many of their peers succeed or fail ;)