It appears that whether the users think it is an investment or not, has nothing to do with the classification as a security.
No.
One and only one link on this thread. I'm getting back to work now.
"According to the Howey test, an instrument is only a security if it involves an investment of money or other tangible or definable consideration used in a
common enterprise with a reasonable
expectation of profits to
be derived primarily from the entrepreneurial or managerial efforts of others."
http://www.legalandcompliance.com/securities-resources/securities-glossary/howey-test-to-determine-if-an-investment-is-a-security/That is why crowdfunding a movie does not violate securities law, or even a toy, watch, etc. where you get the item as a reward. Coins not so much.
The red bolded phrases are the salient part of the test I am referring to. To be an investment security requires an ongoing "
common enterprise" where the buyer "r
easonably expects profits" due to the ongoing "
entrepreneurial or managerial efforts of others" in that enterprise. When the developer sells some software and tokens encoded in a genesis block of the protocol of that software, there is no enterprise. The users take that and decide whether to make it an enterprise. For example, they could throw away the genesis block if they wanted to and were able to organize themselves to do so.
"Ongoing enterprise" or "ongoing efforts" is not part of the definition. Selling interest in a time- or scope-iimited project still counts. That's still a
common enterprise with profits potentially derived "primarily" from the efforts of others.
If someone privately finances development and then sells it when compete, with no further efforts, then that could possibly work. But realistically what buyers are going to buy that? At best, they will do so only at a very discounted price.
As far as users voting to tell the developer what to do (during ongoing maintenance), seems like a very gray area to me. Giving general guidance is probably not good enough as success may still depend "primarily" on the decisions made by developer. As a practical matter, making all the important design, development, and delivery decisions by voting of generally unskilled users seems unworkable (and possibly even voting by skilled experts). You may comply with securities law but you will violate the laws of successful software development.
EDIT: Also, purely mined coins don't obviously fall within this definition because no money or other consideration is ever given to be used by the developer. (An alternative argument would be that the entire network, as opposed to development, is the enterprise, but then in that case one may question whether the developer has a "primary" role in its success; certainly users, investors, merchants, etc. have a huge role in the success of a currency network.) If the developer premines or instamines and the sells those coins, that begins to move closer.