Hey, this discussion is getting really cool and entertaining. I'm going to quote your response in full so we can get back to it few years from now.
I think you clearly plan to promote and distribute a security in the USA but you plan to sidestep the registration requirements by claiming that your security is not a security.
In the nascent days of securities regulation in the USA one Charles Ponzi traded Universal Postal Union International Reply Coupons. UPU IRC clearly weren't securities, yet Ponzi was successfully prosecuted.
In the nascent days of Bitcoin regulation in the USA one Erik Vorhees launched several Bitcoin-based securities while simultaneously running diversionary campaigns like "Let's end one debate: Commodity vs Money"
. He settled with SEC by disgorging all profits (repurchased all his securities) and paying some fine.
had hired a fool for his defense counsel. I have a feeling that you've also hired a fool for your securities counsel.
IANAL, but I really like to talk with them and I will be watching this space for further developments. The past experience with Bitcointalk was that no real IAAL will post in this thread, but I would love to be proven wrong.
Also could you do all the readers a favor and start spelling Howey correctly? You keep spelling it "Howe test" which makes it hard to search for the actual precedents.
Sorry those are securities as defined under the law:
Are you seriously trying to cite an "invitation for comments" from some law firm as a legal precedent having valid legal standing in USA law?
Much better divagations were posted by John Nagle in 2011:
https://bitcointalk.org/index.php?topic=46486.0I was citing the Supreme Court case of SEC vs. Howe. Even I see Nagle doesn't quite understand (or articulate) the generative essence of that case. And you were so far off in the thread, I just smiled.
Your appeals to authority are for b-listers who get their nose bent out-of-joint:
http://esr.ibiblio.org/?p=1404Im going to be specific about what I mean by ego now, because otherwise much of this essay may seem vague or wrongheaded. I specifically mean psychologial egotism, not (for example) ethical egoism as a philosophical position. The main indicators of egotism as I intend it here are are loud self-display, insecurity, constant approval-seeking, overinflating ones accomplishments, touchiness about slights, and territorial twitchiness about ones expertise. My claim is that egotism is a disease of the incapable, and vanishes or nearly vanishes among the super-capable.
Its not only scientific fields where this is true. For various reasons (none of which, fortunately, have been legal troubles of my own) Ive had to work with a lot of lawyers. Im legally literate, so a pattern I quickly noticed is this: the B-list lawyers are the ones who get all huffy about a non-attorney expressing opinions and judgments about the law. The one time I worked with a stratospherically supercompetent A-list firm (I wont name them, but I will note they have their own skyscraper in New York City) they were so relaxed about recognizing capability in a non-lawyer that some language I wrote went straight into their court filings in a lawsuit with multibillion-dollar stakes.
I'll get back to your unspecific strawmen in due time. You are may or may not have a point, yet avoid making a specific point and toss around vagaries instead. Make your case with specifics. I did.
If you find that I am annoyed, then yes because I expect you to cite for me specific case law and give examples and show that you know what the fuck you are talking about, and not just spout off appeals to authority, insults, and vague intersections of general concepts. So far, I've seen you commit logic errors in this thread, and on quick glance maybe more in that thread with Nagle.
You can very well be trained in many concepts and be able to spout off babble, but can you elucidate convincingly.
Sigh. Demonstrating how one is not involved in an "investment security" per the Howe test precedent is not an affirmative loophole defense. It is a defense against the alleged crime. The prosecution must prove the defendant has met the test under the Securities Act and subsequent clarifying case law of what an "investment security" entails.
And you are totally off in left-field again (as you were in the thread with Nagle) in that Regulation S safe harbor is not the defense I was citing. I was citing the defense that no investment security was ever created per the Howe test which defines what constitutes an investment security.
You cite that as a precedent but it is entirely inconsistent with the genre of scenario I was describing in this thread.
http://networkmarketinglaw.com/securities-law/v-bowdoin-dc-cir-march-18-2011/The Indictment alleges that Mr. Bowdoin perpetrated a scheme to defraud the members of ASD. Specifically, it alleges that Mr. Bowdoin solicited prospective customers to ASD based upon, among other things, his promise to use their funds to operate what was represented to be a profitable Internet advertising company capable of providing high returns on the funds they paid to ASD. Over the course of two years, Mr. Bowdoin is alleged to have made numerous misrepresentations and omissions in order to raise funds including: claiming to be operating a legitimate Internet advertising company; asserting that ASD had independent revenue to pay members the returns promised; representing that Mr. Bowdoins only run-in with law enforcement consisted of a traffic ticket, when he had been convicted already of criminal securities violations; representing that the revenue methodology and numbers ASD published in support of its payouts were true and accurate, when ASD was really managing its revenue to ensure that it only paid out about one percent (1%) of a members investment each weekday and one-half a percent (.5%) on the weekends; representing that ASD was not required to register with the United States Securities and Exchange Commission (SEC); and representing that Mr. Bowdoin was operating ASD in a far different manner than that which he followed.
First of all, the defendant was managing a common enterprise using the advertiser's funds and make representations to them. I already pointed out in my scenario up thread, that there would never be any operating common enterprise where funds were received and investors were waiting on returns from the common enterprise being managed by the developer.
Your cited case law is inapplicable and I refer back to SEC vs. Howe until you can find another case which overturns it w.r.t. to my scenario.
Otherwise please take your amateurish snobbish crap and very low powers of logic and discernment else where, because you are wasting my precious and scarce time.