I disagree with how much it matters what it is called. In the legal landscape what you call it is everything and in terms of regulatory requirements, the difference between a "commodity" and a "currency" can be a pretty large stack of paperwork and a pretty big list of "can's and cannot's".
Your missing the point. Regulators don't ask YOU what your product is. They will TELL YOU and then those list of choices above apply. So if the Bitcoin Foundation called Bitcoins commodities, or virtual property, or holy carrots it would have absolutely no value under the law. Regulators would say "Bitcoin is monetary value and subject to xzy". They don't take what you chose to name it into consideration.
I mean do you also think that if you sold gambling products under a different name, say "true random number commodity contracts" it would magically be exempt from regulations/prohibitions on gambling.
Start calling Bitcoins "magical carrots" it won't exempt Bitcoin from anything the state says it is regulated by. The state is the one with the guns and monopoly on violence. They TELL (not ASK) you what laws apply. If you are lucky they don't do it in a carpicious or retroactive fashion. Once they TELL you then you can decide if you want to play or work around that.
That's interesting cause if the regulators want to bring things to court, there should be at least a slight hint of ambiguity in the legal definition of currency, but there isn't, it looks almost as if the original legislators were so concerned that they can not be clear enough about what's currency, that they go to great length to elaborate, repetitively, exhaustively, that it must be something issued by a government.
Paraphrasing. FinCEN has said virtual currencies are not "real currencies" under the law. Lucky for them (and not so lucky for everyone else) the law is very broad based and gives them the authority to regulate a lot of "non-currencies" too.
FinCEN's regulations define currency (also referred to as "real" currency) as "the coin and paper money of the United States or of any other country that is designated as legal tender and that [ii] circulates and [iii] is customarily used and accepted as a medium of exchange in the country of issuance."3 In contrast to real currency, "virtual" currency is a medium of exchange that operates like a currency
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FinCEN's regulations define the term "money transmitter" as a person that provides money transmission services, or any other person engaged in the transfer of funds. The term "money transmission services" means "the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means."
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The definition of a money transmitter does not differentiate between real currencies and convertible virtual currencies. Accepting and transmitting anything of value that substitutes for currency makes a person a money transmitter under the regulations implementing the BSA.
http://fincen.gov/statutes_regs/guidance/html/FIN-2013-G001.htmlSimple version like I said names don't matter. FinCEN is saying virtual currencies, or virtual commodities, or virtual holy carrots are "other value that substitutes for currency". If you disagree well FinCEN is laying out their legal case here so you can expect to eventually see them in court.
Personally I believe their analysis is a little weak but I am not going to risk my livelihood and freedom on their ability to convince a judge they are right. The point is no matter what you call it FinCEN believes Bitcoin is a "substitute for currency". Unless you convince a judge they are incorrect it meets they have the ability to regulate Bitcoin exchangers.
Why don't you Americans have this government in-fight thing? I.e., multiple ministries competing for the power to regulate a certain something, so in order to get the greatest support one ministry will sometimes take the best-accepted position deliberately. Maybe your officials are just so free from corruption that there isn't much to gain from the power to regulate something new?