Swarm obviously doesn't fall under either category, so what they're basically trying to do is claim that they're not actually issuing equity in the traditional sense. Best guess as to what they're arguing is that by making the cryptotokens redeemable for a service (as opposed to actual cash), they're really issuing something closer to gift cards than traditional equity. Gift cards have their own legal issues, but it's not equity. That said, gift cards have limited upside relative to real equity. When the next Oculus is purchased by Facebook, I might be able to redeem by crypto-shares for a free Rift headset, but that's not the same thing as getting X% of the proceeds from the sale of the company.
Here's the take-away though: The reason these laws exist is to prevent con artists from selling shares in some fly-by-night operation and disappearing with the money. There's nothing about crypto-equity that makes fraud any less likely than traditional equity. So if you're the SEC, and you see someone selling something that acts like equity, looks like equity, is actually described as equity, and poses the same risks for the buyer that regular equity does, the fact that it might not fit neatly in the traditional definition of equity isn't going to deter you from putting a stop to this.