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Comment by gfodor | Hacker News Reader

The "utility token" meme was hilarious in the community basically talking itself into the idea that the SEC was going to write a bunch of new laws and/or interpret the existing ones in the most favorable light to those raising ICOs. Playing with fire.

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The SEC doesn't create law. Courts do. It can claim anything it wants, but until its argument is tested by a court, it's not law.

There continue to be strong legal arguments for utility tokens not being securities:

https://www.coinbase.com/legal/securities-law-framework.pdf

This attitude of deferring to regulatory agencies, which have their own set of institutional biases, on the question of the applicability of securities laws to smart-contract executed issuances of digital tokens that confer zero legal title to a common enterprise, is dangerous to liberty and innovation.

Courts don't create the law, they interpret it (...except in India, where the Supreme Court actually does make laws). The Legislature writes the law.

A security doesn't require a common enterprise, it simply requires that one thing represents an interest in something else. The underlying asset is usually financial or intangible in nature, but that isn't required. There are more specific rules and exceptions, but those vary by jurisdiction.

A security doesn't require a common enterprise, it simply requires that one thing represents an interest in something else.

True, it even works with past and future music royalties.

David Bowie (together with his financial manager and an investment banker) was probably the first to come up with securisation of non-tangible assets.[1]

It's a fascinating story.

[1] https://www.bbc.com/news/business-35280945

Courts create common law, which determines how statutory laws are interpreted.

>>A security doesn't require a common enterprise, it simply requires that one thing represents an interest in something else.

Investment into a common enterprise is the second prong of the Howey Test.

True, but the Howey test is not the the sole test of determining what a security is. Context matters.

Courts don't create laws. They just come up with new rules that you can't break without going to prison. No laws, though.

"This attitude of deferring to regulatory agencies ... is dangerous to liberty and innovation."

I'm just checking that that's really what you meant to say.

The ellipses replace pretty important context.

Sounds good to me.

Utility tokens aren't securities, but the problem is that there are no utility tokens. Everything calling itself a utility token isn't, because they're all marketed as investments (maybe with the exception of SiaCoin).

MaidSAFE is making a utility token

Chevron deference.

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