Well, it is something of a he said/she said between Coinbase and the SEC. But the Judge in the Voyager bankruptcy case had similar concerns about the clarity provided by the SEC -
https://twitter.com/BillHughesDC/status/1636069735006699523
Not really. The law has been exactly the same since the 1940s. Apparently though Coinbase has decided to go all in on SBF's strategy of pretending to be too dumb to understand the law.
Coinbase arguing that they should be allowed to sell illegal unregistered securities because the SEC said they could sell securities is like CVS arguing that should be allowed to sell cocaine because the government told them they could be a drug store.
Unfortunately the CFTC has another view and they both can’t be right so which part of the federal governance applies here?
https://www.cftc.gov/digitalassets/index.htm
This ambiguity is why clarity is needed. In the famous words of Matt Levine everything is securities fraud.
It seems obvious that some legal clarity is actually required here.
Of course they can. Whether something is a commodity has absolutely nothing to do with whether something is a security. They are completely orthogonal concepts.
What is a commodity then?