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Howey Test and Cryptocurrencies: 'Every ICO Is a Security'
What Is the Howey Test?
To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts."
The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.
Understanding the Howey Test
The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land.
The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.
This established four criteria for determining an investment contract. Investing contract:
- An investment of money
- n a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.
Howey Test and Cryptocurrencies
Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.
The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test.
Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."
For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.
These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."
Special Considerations
If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register.
In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry.
Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities.
SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'
Howey Test FAQs
How Do You Determine If Something Is a Security?
The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.
Why Is Bitcoin Not a Security?
Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.
Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities.
A Security Defined by the SEC
In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.
The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:
- An investment contract's existence
- The formation of a common enterprise
- The issuer's profit promise
- Third-party promotion of the offering
Read original post.
More on Web3 & Crypto
Yusuf Ibrahim
3 years ago
How to sell 10,000 NFTs on OpenSea for FREE (Puppeteer/NodeJS)
So you've finished your NFT collection and are ready to sell it. Except you can't figure out how to mint them! Not sure about smart contracts or want to avoid rising gas prices. You've tried and failed with apps like Mini mouse macro, and you're not familiar with Selenium/Python. Worry no more, NodeJS and Puppeteer have arrived!
Learn how to automatically post and sell all 1000 of my AI-generated word NFTs (Nakahana) on OpenSea for FREE!
My NFT project — Nakahana |
NOTE: Only NFTs on the Polygon blockchain can be sold for free; Ethereum requires an initiation charge. NFTs can still be bought with (wrapped) ETH.
If you want to go right into the code, here's the GitHub link: https://github.com/Yusu-f/nftuploader
Let's start with the knowledge and tools you'll need.
What you should know
You must be able to write and run simple NodeJS programs. You must also know how to utilize a Metamask wallet.
Tools needed
- NodeJS. You'll need NodeJs to run the script and NPM to install the dependencies.
- Puppeteer – Use Puppeteer to automate your browser and go to sleep while your computer works.
- Metamask – Create a crypto wallet and sign transactions using Metamask (free). You may learn how to utilize Metamask here.
- Chrome – Puppeteer supports Chrome.
Let's get started now!
Starting Out
Clone Github Repo to your local machine. Make sure that NodeJS, Chrome, and Metamask are all installed and working. Navigate to the project folder and execute npm install. This installs all requirements.
Replace the “extension path” variable with the Metamask chrome extension path. Read this tutorial to find the path.
Substitute an array containing your NFT names and metadata for the “arr” variable and the “collection_name” variable with your collection’s name.
Run the script.
After that, run node nftuploader.js.
Open a new chrome instance (not chromium) and Metamask in it. Import your Opensea wallet using your Secret Recovery Phrase or create a new one and link it. The script will be unable to continue after this but don’t worry, it’s all part of the plan.
Next steps
Open your terminal again and copy the route that starts with “ws”, e.g. “ws:/localhost:53634/devtools/browser/c07cb303-c84d-430d-af06-dd599cf2a94f”. Replace the path in the connect function of the nftuploader.js script.
const browser = await puppeteer.connect({ browserWSEndpoint: "ws://localhost:58533/devtools/browser/d09307b4-7a75-40f6-8dff-07a71bfff9b3", defaultViewport: null });
Rerun node nftuploader.js. A second tab should open in THE SAME chrome instance, navigating to your Opensea collection. Your NFTs should now start uploading one after the other! If any errors occur, the NFTs and errors are logged in an errors.log file.
Error Handling
The errors.log file should show the name of the NFTs and the error type. The script has been changed to allow you to simply check if an NFT has already been posted. Simply set the “searchBeforeUpload” setting to true.
We're done!
If you liked it, you can buy one of my NFTs! If you have any concerns or would need a feature added, please let me know.
Thank you to everyone who has read and liked. I never expected it to be so popular.
joyce shen
3 years ago
Framework to Evaluate Metaverse and Web3
Everywhere we turn, there's a new metaverse or Web3 debut. Microsoft recently announced a $68.7 BILLION cash purchase of Activision.
Like AI in 2013 and blockchain in 2014, NFT growth in 2021 feels like this year's metaverse and Web3 growth. We are all bombarded with information, conflicting signals, and a sensation of FOMO.
How can we evaluate the metaverse and Web3 in a noisy, new world? My framework for evaluating upcoming technologies and themes is shown below. I hope you will also find them helpful.
Understand the “pipes” in a new space.
Whatever people say, Metaverse and Web3 will have to coexist with the current Internet. Companies who host, move, and store data over the Internet have a lot of intriguing use cases in Metaverse and Web3, whether in infrastructure, data analytics, or compliance. Hence the following point.
## Understand the apps layer and their infrastructure.
Gaming, crypto exchanges, and NFT marketplaces would not exist today if not for technology that enables rapid app creation. Yes, according to Chainalysis and other research, 30–40% of Ethereum is self-hosted, with the rest hosted by large cloud providers. For Microsoft to acquire Activision makes strategic sense. It's not only about the games, but also the infrastructure that supports them.
Follow the money
Understanding how money and wealth flow in a complex and dynamic environment helps build clarity. Unless you are exceedingly wealthy, you have limited ability to significantly engage in the Web3 economy today. Few can just buy 10 ETH and spend it in one day. You must comprehend who benefits from the process, and how that 10 ETH circulates now and possibly tomorrow. Major holders and players control supply and liquidity in any market. Today, most Web3 apps are designed to increase capital inflow so existing significant holders can utilize it to create a nascent Web3 economy. When you see a new Metaverse or Web3 application, remember how money flows.
What is the use case?
What does the app do? If there is no clear use case with clear makers and consumers solving a real problem, then the euphoria soon fades, and the only stakeholders who remain enthused are those who have too much to lose.
Time is a major competition that is often overlooked.
We're only busier, but each day is still 24 hours. Using new apps may mean that time is lost doing other things. The user must be eager to learn. Metaverse and Web3 vs. our time? I don't think we know the answer yet (at least for working adults whose cost of time is higher).
I don't think we know the answer yet (at least for working adults whose cost of time is higher).
People and organizations need security and transparency.
For new technologies or apps to be widely used, they must be safe, transparent, and trustworthy. What does secure Metaverse and Web3 mean? This is an intriguing subject for both the business and public sectors. Cloud adoption grew in part due to improved security and data protection regulations.
The following frameworks can help analyze and understand new technologies and emerging technological topics, unless you are a significant investment fund with the financial ability to gamble on numerous initiatives and essentially form your own “index fund”.
I write on VC, startups, and leadership.
More on https://www.linkedin.com/in/joycejshen/ and https://joyceshen.substack.com/
This writing is my own opinion and does not represent investment advice.
Coinbase
3 years ago
10 Predictions for Web3 and the Cryptoeconomy for 2022
By Surojit Chatterjee, Chief Product Officer
2021 proved to be a breakout year for crypto with BTC price gaining almost 70% yoy, Defi hitting $150B in value locked, and NFTs emerging as a new category. Here’s my view through the crystal ball into 2022 and what it holds for our industry:
1. Eth scalability will improve, but newer L1 chains will see substantial growth — As we welcome the next hundred million users to crypto and Web3, scalability challenges for Eth are likely to grow. I am optimistic about improvements in Eth scalability with the emergence of Eth2 and many L2 rollups. Traction of Solana, Avalanche and other L1 chains shows that we’ll live in a multi-chain world in the future. We’re also going to see newer L1 chains emerge that focus on specific use cases such as gaming or social media.
2. There will be significant usability improvements in L1-L2 bridges — As more L1 networks gain traction and L2s become bigger, our industry will desperately seek improvements in speed and usability of cross-L1 and L1-L2 bridges. We’re likely to see interesting developments in usability of bridges in the coming year.
3. Zero knowledge proof technology will get increased traction — 2021 saw protocols like ZkSync and Starknet beginning to get traction. As L1 chains get clogged with increased usage, ZK-rollup technology will attract both investor and user attention. We’ll see new privacy-centric use cases emerge, including privacy-safe applications, and gaming models that have privacy built into the core. This may also bring in more regulator attention to crypto as KYC/AML could be a real challenge in privacy centric networks.
4. Regulated Defi and emergence of on-chain KYC attestation — Many Defi protocols will embrace regulation and will create separate KYC user pools. Decentralized identity and on-chain KYC attestation services will play key roles in connecting users’ real identity with Defi wallet endpoints. We’ll see more acceptance of ENS type addresses, and new systems from cross chain name resolution will emerge.
5. Institutions will play a much bigger role in Defi participation — Institutions are increasingly interested in participating in Defi. For starters, institutions are attracted to higher than average interest-based returns compared to traditional financial products. Also, cost reduction in providing financial services using Defi opens up interesting opportunities for institutions. However, they are still hesitant to participate in Defi. Institutions want to confirm that they are only transacting with known counterparties that have completed a KYC process. Growth of regulated Defi and on-chain KYC attestation will help institutions gain confidence in Defi.
6. Defi insurance will emerge — As Defi proliferates, it also becomes the target of security hacks. According to London-based firm Elliptic, total value lost by Defi exploits in 2021 totaled over $10B. To protect users from hacks, viable insurance protocols guaranteeing users’ funds against security breaches will emerge in 2022.
7. NFT Based Communities will give material competition to Web 2.0 social networks — NFTs will continue to expand in how they are perceived. We’ll see creator tokens or fan tokens take more of a first class seat. NFTs will become the next evolution of users’ digital identity and passport to the metaverse. Users will come together in small and diverse communities based on types of NFTs they own. User created metaverses will be the future of social networks and will start threatening the advertising driven centralized versions of social networks of today.
8. Brands will start actively participating in the metaverse and NFTs — Many brands are realizing that NFTs are great vehicles for brand marketing and establishing brand loyalty. Coca-Cola, Campbell’s, Dolce & Gabbana and Charmin released NFT collectibles in 2021. Adidas recently launched a new metaverse project with Bored Ape Yacht Club. We’re likely to see more interesting brand marketing initiatives using NFTs. NFTs and the metaverse will become the new Instagram for brands. And just like on Instagram, many brands may start as NFT native. We’ll also see many more celebrities jumping in the bandwagon and using NFTs to enhance their personal brand.
9. Web2 companies will wake up and will try to get into Web3 — We’re already seeing this with Facebook trying to recast itself as a Web3 company. We’re likely to see other big Web2 companies dipping their toes into Web3 and metaverse in 2022. However, many of them are likely to create centralized and closed network versions of the metaverse.
10. Time for DAO 2.0 — We’ll see DAOs become more mature and mainstream. More people will join DAOs, prompting a change in definition of employment — never receiving a formal offer letter, accepting tokens instead of or along with fixed salaries, and working in multiple DAO projects at the same time. DAOs will also confront new challenges in terms of figuring out how to do M&A, run payroll and benefits, and coordinate activities in larger and larger organizations. We’ll see a plethora of tools emerge to help DAOs execute with efficiency. Many DAOs will also figure out how to interact with traditional Web2 companies. We’re likely to see regulators taking more interest in DAOs and make an attempt to educate themselves on how DAOs work.
Thanks to our customers and the ecosystem for an incredible 2021. Looking forward to another year of building the foundations for Web3. Wagmi.
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Aldric Chen
3 years ago
Jack Dorsey's Meeting Best Practice was something I tried. It Performs Exceptionally Well in Consulting Engagements.
Yes, client meetings are difficult. Especially when I'm alone.
Clients must tell us their problems so we can help.
In-meeting challenges contribute nothing to our work. Consider this:
Clients are unprepared.
Clients are distracted.
Clients are confused.
Introducing Jack Dorsey's Google Doc approach
I endorse his approach to meetings.
Not Google Doc-related. Jack uses it for meetings.
This is what his meetings look like.
Prior to the meeting, the Chair creates the agenda, structure, and information using Google Doc.
Participants in the meeting would have 5-10 minutes to read the Google Doc.
They have 5-10 minutes to type their comments on the document.
In-depth discussion begins
There is elegance in simplicity. Here's how Jack's approach is fantastic.
Unprepared clients are given time to read.
During the meeting, they think and work on it.
They can see real-time remarks from others.
Discussion ensues.
Three months ago, I fell for this strategy. After trying it with a client, I got good results.
I conducted social control experiments in a few client workshops.
Context matters.
I am sure Jack Dorsey’s method works well in meetings. What about client workshops?
So, I tested Enterprise of the Future with a consulting client.
I sent multiple emails to client stakeholders describing the new approach.
No PowerPoints that day. I spent the night setting up the Google Doc with conversation topics, critical thinking questions, and a Before and After section.
The client was shocked. First, a Google Doc was projected. Second surprise was a verbal feedback.
“No pre-meeting materials?”
“Don’t worry. I know you are not reading it before our meeting, anyway.”
We laughed. The experiment started.
Observations throughout a 90-minute engagement workshop from beginning to end
For 10 minutes, the workshop was silent.
People read the Google Doc. For some, the silence was unnerving.
“Are you not going to present anything to us?”
I said everything's in Google Doc. I asked them to read, remark, and add relevant paragraphs.
As they unlocked their laptops, they were annoyed.
Ten client stakeholders are typing on the Google Doc. My laptop displays comment bubbles, red lines, new paragraphs, and strikethroughs.
The first 10 minutes were productive. Everyone has seen and contributed to the document.
I was silent.
The move to a classical workshop was smooth. I didn't stimulate dialogue. They did.
Stephanie asked Joe why a blended workforce hinders company productivity. She questioned his comments and additional paragraphs.
That is when a light bulb hit my head. Yes, you want to speak to the right person to resolve issues!
Not only that was discussed. Others discussed their remark bubbles with neighbors. Debate circles sprung up one after the other.
The best part? I asked everyone to add their post-discussion thoughts on a Google Doc.
After the workshop, I have:
An agreement-based working document
A post-discussion minutes that are prepared for publication
A record of the discussion points that were brought up, argued, and evaluated critically
It showed me how stakeholders viewed their Enterprise of the Future. It allowed me to align with them.
Finale Keynotes
Client meetings are a hit-or-miss. I know that.
Jack Dorsey's meeting strategy works for consulting. It promotes session alignment.
It relieves clients of preparation.
I get the necessary information to advance this consulting engagement.
It is brilliant.
Matthew Royse
3 years ago
7 ways to improve public speaking
How to overcome public speaking fear and give a killer presentation
"Public speaking is people's biggest fear, according to studies. Death's second. The average person is better off in the casket than delivering the eulogy." — American comedian, actor, writer, and producer Jerry Seinfeld
People fear public speaking, according to research. Public speaking can be intimidating.
Most professions require public speaking, whether to 5, 50, 500, or 5,000 people. Your career will require many presentations. In a small meeting, company update, or industry conference.
You can improve your public speaking skills. You can reduce your anxiety, improve your performance, and feel more comfortable speaking in public.
“If I returned to college, I'd focus on writing and public speaking. Effective communication is everything.” — 38th president Gerald R. Ford
You can deliver a great presentation despite your fear of public speaking. There are ways to stay calm while speaking and become a more effective public speaker.
Seven tips to improve your public speaking today. Let's help you overcome your fear (no pun intended).
Know your audience.
"You're not being judged; the audience is." — Entrepreneur, author, and speaker Seth Godin
Understand your audience before speaking publicly. Before preparing a presentation, know your audience. Learn what they care about and find useful.
Your presentation may depend on where you're speaking. A classroom is different from a company meeting.
Determine your audience before developing your main messages. Learn everything about them. Knowing your audience helps you choose the right words, information (thought leadership vs. technical), and motivational message.
2. Be Observant
Observe others' speeches to improve your own. Watching free TED Talks on education, business, science, technology, and creativity can teach you a lot about public speaking.
What worked and what didn't?
What would you change?
Their strengths
How interesting or dull was the topic?
Note their techniques to learn more. Studying the best public speakers will amaze you.
Learn how their stage presence helped them communicate and captivated their audience. Please note their pauses, humor, and pacing.
3. Practice
"A speaker should prepare based on what he wants to learn, not say." — Author, speaker, and pastor Tod Stocker
Practice makes perfect when it comes to public speaking. By repeating your presentation, you can find your comfort zone.
When you've practiced your presentation many times, you'll feel natural and confident giving it. Preparation helps overcome fear and anxiety. Review notes and important messages.
When you know the material well, you can explain it better. Your presentation preparation starts before you go on stage.
Keep a notebook or journal of ideas, quotes, and examples. More content means better audience-targeting.
4. Self-record
Videotape your speeches. Check yourself. Body language, hands, pacing, and vocabulary should be reviewed.
Best public speakers evaluate their performance to improve.
Write down what you did best, what you could improve and what you should stop doing after watching a recording of yourself. Seeing yourself can be unsettling. This is how you improve.
5. Remove text from slides
"Humans can't read and comprehend screen text while listening to a speaker. Therefore, lots of text and long, complete sentences are bad, bad, bad.” —Communications expert Garr Reynolds
Presentation slides shouldn't have too much text. 100-slide presentations bore the audience. Your slides should preview what you'll say to the audience.
Use slides to emphasize your main point visually.
If you add text, use at least 40-point font. Your slides shouldn't require squinting to read. You want people to watch you, not your slides.
6. Body language
"Body language is powerful." We had body language before speech, and 80% of a conversation is read through the body, not the words." — Dancer, writer, and broadcaster Deborah Bull
Nonverbal communication dominates. Our bodies speak louder than words. Don't fidget, rock, lean, or pace.
Relax your body to communicate clearly and without distraction through nonverbal cues. Public speaking anxiety can cause tense body language.
Maintain posture and eye contact. Don’t put your hand in your pockets, cross your arms, or stare at your notes. Make purposeful hand gestures that match what you're saying.
7. Beginning/ending Strong
Beginning and end are memorable. Your presentation must start strong and end strongly. To engage your audience, don't sound robotic.
Begin with a story, stat, or quote. Conclude with a summary of key points. Focus on how you will start and end your speech.
You should memorize your presentation's opening and closing. Memorize something naturally. Excellent presentations start and end strong because people won't remember the middle.
Bringing It All Together
Seven simple yet powerful ways to improve public speaking. Know your audience, study others, prepare and rehearse, record yourself, remove as much text as possible from slides, and start and end strong.
Follow these tips to improve your speaking and audience communication. Prepare, practice, and learn from great speakers to reduce your fear of public speaking.
"Speaking to one person or a thousand is public speaking." — Vocal coach Roger Love
Protos
3 years ago
Plagiarism on OpenSea: humans and computers
OpenSea, a non-fungible token (NFT) marketplace, is fighting plagiarism. A new “two-pronged” approach will aim to root out and remove copies of authentic NFTs and changes to its blue tick verified badge system will seek to enhance customer confidence.
According to a blog post, the anti-plagiarism system will use algorithmic detection of “copymints” with human reviewers to keep it in check.
Last year, NFT collectors were duped into buying flipped images of the popular BAYC collection, according to The Verge. The largest NFT marketplace had to remove its delay pay minting service due to an influx of copymints.
80% of NFTs removed by the platform were minted using its lazy minting service, which kept the digital asset off-chain until the first purchase.
NFTs copied from popular collections are opportunistic money-grabs. Right-click, save, and mint the jacked JPEGs that are then flogged as an authentic NFT.
The anti-plagiarism system will scour OpenSea's collections for flipped and rotated images, as well as other undescribed permutations. The lack of detail here may be a deterrent to scammers, or it may reflect the new system's current rudimentary nature.
Thus, human detectors will be needed to verify images flagged by the detection system and help train it to work independently.
“Our long-term goal with this system is two-fold: first, to eliminate all existing copymints on OpenSea, and second, to help prevent new copymints from appearing,” it said.
“We've already started delisting identified copymint collections, and we'll continue to do so over the coming weeks.”
It works for Twitter, why not OpenSea
OpenSea is also changing account verification. Early adopters will be invited to apply for verification if their NFT stack is worth $100 or more. OpenSea plans to give the blue checkmark to people who are active on Twitter and Discord.
This is just the beginning. We are committed to a future where authentic creators can be verified, keeping scammers out.
Also, collections with a lot of hype and sales will get a blue checkmark. For example, a new NFT collection sold by the verified BAYC account will have a blue badge to verify its legitimacy.
New requests will be responded to within seven days, according to OpenSea.
These programs and products help protect creators and collectors while ensuring our community can confidently navigate the world of NFTs.
By elevating authentic content and removing plagiarism, these changes improve trust in the NFT ecosystem, according to OpenSea.
OpenSea is indeed catching up with the digital art economy. Last August, DevianArt upgraded its AI image recognition system to find stolen tokenized art on marketplaces like OpenSea.
It scans all uploaded art and compares it to “public blockchain events” like Ethereum NFTs to detect stolen art.