We are totally aware of the Howey test and have scrupulously avoided engaging in any business governed by it. Our only activity is developing an open source software toolkit which others have used or are using to deploy their own applications including BitShares, MUSE, PLAY and Identabit. We do not operate any of these businesses or pay ourselves anything. We do accept contracts to provide and maintain software for other manned and unmanned entities. At no time have we sold anything.
1. Have you consulted an attorney and may we know the name of the legal firm standing behind your assertion?
2. I was told by someone (I think smooth?) that there are payments to stake holders and at least with Dash's masternodes some percentage of that gets paid to the developers. How are you and Dan being paid? Somehow you are receiving remuneration for working on this and thus you are part of the enterprise. And it doesn't even matter if you are being paid (that just makes the case more iron clad), because the Howey test has very minimal requirements to ensnare you. Thus I say you or your attorney does not understand the Howey test:
I had read the actual Supreme Court text and not just summary of interpretation. The judgement revolves around the interpretation of the meaning of "investment contract" and it specifically says that there are no specific cases that will preclude the interpretation of the economic reality:
So there are no specific rules. The court will look at the economic reality of whether participants were placing of capital or laying out money in expectation of profit. Note that 'capital' might not even mean money. It can include applying their effort, which is a form of human capital. I confirmed this by reading in depth other expert interpretations and subsequent case law.
It appears to me that the court will look at the reasonable expectations of the participants. And always side with protecting the public. Thus my interpretation is if the participants are not investing but just using your tokens, then they don't need to be protected by securities registration. However if your tokens are being invested in by investors expecting a profit, then you need to register then with the SEC. This is why I advised making sure the ecosystem is well diversified asap, so that by the time investors start accumulating the tokens, then it can't be alleged that the investors were basing their investment on the ongoing effort of the original developers of the coin.[...]
But again I am not a lawyer, so you can't cite my posts as legal advice!!
Quote from: SEC v. W. J. Howey Co.
The term 'investment contract' is undefined [...]it had been broadly construed by state courts so as to afford the investing public a full measure of protection. Form was disregarded for substance and emphasis was placed upon economic reality. An investment contract thus came to mean a contract or scheme for 'the placing of capital or laying out of money in a way intended to secure income or profit
So there are no specific rules. The court will look at the economic reality of whether participants were placing of capital or laying out money in expectation of profit. Note that 'capital' might not even mean money. It can include applying their effort, which is a form of human capital. I confirmed this by reading in depth other expert interpretations and subsequent case law.
It appears to me that the court will look at the reasonable expectations of the participants. And always side with protecting the public. Thus my interpretation is if the participants are not investing but just using your tokens, then they don't need to be protected by securities registration. However if your tokens are being invested in by investors expecting a profit, then you need to register then with the SEC. This is why I advised making sure the ecosystem is well diversified asap, so that by the time investors start accumulating the tokens, then it can't be alleged that the investors were basing their investment on the ongoing effort of the original developers of the coin.[...]
But again I am not a lawyer, so you can't cite my posts as legal advice!!
It is very clear that people are investing in BitShares because they are expecting development efforts from you and Dan. Come on that is blatantly obvious. How can you justify that you are not subject to the Howey test
