Not a U.S. lawyer, not your lawyer, and what follows is a blog post, not legal advice.
There has been a meme propagated in recent months by the folks over at Ripple Labs. That meme is that the cryptocurrency token known as “Ripple” or “XRP” has absolutely nothing to do with Ripple Labs the company, that XRP pre-existed Ripple Labs the company and was gifted to it, and that the protocol that runs XRP is totally decentralized, à la Bitcoin.
See, e.g., this blog post:
Or, in the alternative, Ripple’s testimony to Parliament (pay particularly close attention to the text in red):
“XRP is open source and it was not created by our company, so that existed as an open source technology. We created a company that was interested in modernizing payments and then began using that open-source tech to do so … We didn’t create XRP… What we do have is we do own a significant amount of XRP, it was gifted to us by some of the open-source developers that created it. But there’s not a direct connection between Ripple the company and XRP.”
– Ryan Zagone, Ripple Director of Regulatory Relations
Why Ripple Labs has elected to push this line of reasoning, I cannot say. If I had to venture a guess, I should think that running a company that does not manage or issue a cryptocurrency is far less of a pain in the ass than running one that does. Bolting on a token to one’s commercial offering means introducing into one’s life a panoply of the worst and best elements of the crypto world: community management, troll bot armies on Twitter, Telegram groups, Subreddits, and the like. It also promises the possibility of undertaking some of cryptoland’s most sublime pleasures, including sending some love letters to any or all of the Securities and Exchange Commission, FinCEN and the Commodity Futures Trading Commission.
Now, I don’t mean to throw shade at Ripple Labs here. More power to them. Like the famous firsts of Neil Armstrong landing on the Moon, or Charles Lindbergh flying across the Atlantic in a single-engine propeller-driven aircraft, I can think of few acts of such singular daring as voluntarily wading into an ocean of complications, licences (note: British spelling) and litigants… as a cryptocurrency issuer.
In exchange for forging ahead through these many annoyances and dangers, the possibility of vast wealth awaits the Ripplenauts on the other side, a decentralized latter-day El Dorado, with vast mountains of fidget spinner-branded treasure gleaming just beyond the shore. Equally there lies the possibility of total, abject ruin. As Kazantzakis put it in The Last Temptation of Christ, “the doors to heaven and hell are adjacent and identical.” Nowhere is this more true than in cryptocurrency issuance and investment.
With this as our background, long have I been willing to extend Ripple the courtesy of not writing about them on this blog. No longer. Unfortunately, like my friend Bitfinexed I too am a “shill for truth,” so when I see Bloomberg reporting that XRP and Ripple are totally independent of one another – specifically,
XRP, which is an independent digital asset
…which is then repeated on Twitter by folks like this charming fellow,
…I am compelled to respond. This is wrong. I was there in 2013; I remember the days when Ripple owned the fact that it had built the Ripple… excuse me, XRP… protocol. Now, when the mainstream media, like Bloomberg, start to categorize XRP as an “independent digital asset,” like Bitcoin, we should, as a community, push back.
It’s crucial to ensure the market has accurate information about how XRP was created, how consensus is achieved on the XRP ledger, and therefore how XRP should be treated by an investor running a risk analysis and making an investment decision on whether and how to buy the token. Or as my friend Colin puts it:
I set the record straight below with a helpful timeline.
1) Did Ripple Labs create XRP?
Ripple Labs’ own documents speak for themselves. In my opinion the answer is “yes, Ripple created XRP, they own most of it and it was issued after company formation.” Open-and-shut determination.
a) 17-19 September 2012: Ripple Labs is incorporated
Ripple Labs was incorporated as “Newcoin, Inc.” in the State of California on 17 September, 2012, at which point a de facto corporation came into being. On the 19th of September the company’s articles of association were stamped by the CA Secretary of State, at which point “Newcoin, Inc.” formally came into being.
Contrary to what many of Ripple’s defenders on Twitter and the forums claim, “Newcoin, Inc.” is, for all intents and purposes, the same company as present-day “Ripple Labs.” Newcoin, Inc. was renamed to “Opencoin, Inc.” in October, 2012. OpenCoin Inc. was later re-named to “Ripple Labs, Inc.” in 2013.
California-incorporated Ripple Labs, Inc. was then merged into a wholly-owned subsidiary, a Delaware corporation also called “Ripple Labs, Inc.,” in 2014. This is the Ripple Labs we all know and love today.
Anything done by Newcoin/Opencoin/Ripple Labs (CA) was done by a direct predecessor of the current Ripple entity that runs the business. All those names refer to the same company. For the sake of this analysis, therefore, each of the four names should be treated as if they refer to the same enterprise.
b) 17 September 2012: The Founders’ Agreement is signed
On the same date and presumably at or about the same time, the Ripple founders Arthur Britto, Jed McCaleb and Chris Larsen signed the following short-form agreement:
Now, I’m an English lawyer rather than a California lawyer (because the Countenance Divine shines forth upon England’s clouded hills, whereas California is just awful). But if this agreement were governed by English law, it would achieve three things. I’ll work through them in reverse order, because it makes more sense that way.
In the third paragraph, we have what appears to be either a very slapdash IP assignment or a reference to an IP assignment which is taking place in some agreement that’s outside of the four corners of this letter.
Crucially, the assignment shows that the intellectual property in Ripple the software was to be transferred to Ripple Labs (technically Newcoin Inc., renamed to Opencoin Inc. 30 days later, and eventually renamed to Ripple Labs, Inc.) and would thereafter be owned by Ripple Labs and not by Arthur Britto. There was, furthermore, an agreement, either here (if so, poorly drafted) or referenced here and agreed somewhere else more fully, that any further contributions by Britto or anyone of the other Founders to the Ripple software would be open-source. In exchange for that assignment, Ripple granted a lifetime licence to Britto to build apps with the coin (no word on whether that licence is assignable or not).
IMV Ripple got the better end of that deal. But I digress.
Moving up to the second paragraph, here we have the three Founders making agreements about how credits will later exist on an “Official Ledger” which “it is anticipated” (a) will have 100 billion credits and (b) if it has more credits than that, will permit Britto to acquire (again, per a fairly loosely-drafted anti-dilution provision) a number of credits, at no charge, that will bring his total holdings of credits to 2% of the total number of credits in issue.
Finally, we have the first paragraph. We know from the third paragraph that, per this agreement, Ripple Labs owns the Ripple software. We know from the second paragraph that, per this agreement, there’s going to be an Official Ledger built with the software Ripple Labs owns and, based on the construction of that paragraph, it is likely that the Official Ledger does not yet exist as it is referred to in the future tense. Therefore “Ripple Credits,” later re-branded XRP, also do not yet exist.
Now, we are told that on that Official Ledger, 80% of the Ripple Credits “shall be allocated to the Company, as determined by the percentage share of all existing Credits set forth in the ledger created, approved and adopted by the majority of Founders as the Official Ledger.” So we know that of the software Ripple owns, that does not yet exist, in relation to which an official ledger is to be created, Ripple is to be allocated 80% of the tokens thereon for its own purposes.
So when were the tokens actually created?
c) 1 January 2013
The first Ripple transaction in existence was made on 1 January 2013, when the network was publicly launched. We can assume that this is the “Official Ledger” as, presumably, no launch would have occurred without the requisite majority of the Founders providing their consent (and at least Chris Larsen and Jed McCaleb would have consented to this version of the ledger, based on the historical record). Ripple Labs, Inc. also will have owned all the IP in the Official Ledger if it had executed anything like market standard agreements with its founders and employees. More on IP ownership in the “conclusions” section below.
Here’s what the transaction explorer says about all of the transactions on the Ripple ledger from 17 August 2012 (a month before Ripple Labs was incorporated) through 31 December 2012:
Zero. Zilch. Donut.
So are there any transactions on 1 January? Why yes. Yes there are. 18 of them to be precise:
d) So is XRP an “independent digital asset?”
The terms “independent” and “digital asset” are not defined when used by Ripple, so rather than go back and forth about semantics all day, I suggest we simply ask a different question.
The question that really should be asked is “Is calling XRP an ‘independent digital asset’ potentially misleading given the factual matrix surrounding its creation and issuance?” This is a question I cannot answer; you, dear reader, will have to do that for yourself. Our information, available from public documents and block explorers, tells us:
- The “Official Ledger” did not exist on 17 September 2012.
- I assume the “Official Ledger” is the XRP everyone uses today. Indeed, it can have no other meaning. In that case, transaction data on the Official Ledger shows that it did not exist until 1 January 2013.
- On 1 January 2013, Ripple Labs very likely owned all right, title and interest in the software on which the Official Ledger was being run that had been generated by its founding team. If they covered their bases Ripple Labs will also have owned all the IP contributed by any other team members, e.g. David Schwartz.
- On the launch date, Ripple Labs owned 80% of the tokens on the network, being 80 billion tokens.
- The tokens were called “Ripple Credits.” As in Ripple Labs, the company.
- To the extent any Ripple Credits tokens owned at one point by Ripple Labs are now being traded by third parties, it is because those tokens were first sold into the public markets by Ripple Labs or otherwise found their way there by some volitional act of Ripple Labs.
- To the extent any Ripple Credits tokens are being traded at all, these will have at one point been part of contractual arrangements to which Ripple Labs was a party.
- Any Ripple Credit token on the network was created pursuant to a pre-incorporation agreement, which Ripple Labs appears to have adopted, in relation to which Ripple Labs appears to have been an intended beneficiary and which assigned Ripple Labs the rights in the software with which that Official Ledger was, and any Ripple Credits in it were, to be instantiated.
To really drive the point home about who calls the shots about XRP, look at the branding of the product itself. When I go to Ripple’s website, on the upper right, there’s a heading that says “XRP”…
…which, if I click through, leads me to a big honking logo reading “XRP…”
…a brand name owned by none other than… you guessed it!… Ripple Labs.
If, in Ryan Zagone’s words,
XRP is open source and… was not created by our company,
…what business, exactly, did Ripple Labs have registering that trademark with the USPTO, thereby representing that Ripple Labs owned that IP, on 17 May 2013 – nearly six months after the network launched on 1 January 2013?
The Ripple vs. XRP situation appears pretty straightforward to me. All of the above makes no sense if Ripple did not create XRP, and makes perfect sense if Ripple Labs did in fact create XRP. This rather suggests that it may be less than accurate to characterize XRP as being fully independent from Ripple Labs. Certainly it is absolutely not accurate to say that XRP’s existence has always been separate from Ripple Labs.
The fact is, Ripple Labs is all over XRP. The XRP brand name is owned by Ripple Labs. The fact that Ripple Labs filed a trademark application over the word mark “XRP” six months after launch, and 8 months after Jed McCaleb’s GitHub commit on 4 November 2012 that first changed the ticker symbol from “XNS” to “XRP,” shows that (a) XRP did not exist before that date, which in any case is two months after Ripple Labs was incorporated and (b) the company regarded the “XRP” IP as its own.
From the date of incorporation onwards, the software which runs XRP appears to have been owned by Ripple Labs. The copyright notice over the software specifies that Ripple Labs began asserting copyright over the software as early as 2012, consistent with our interpretation of the “Founders’ Agreement” that appears to show the company was concerned with getting the IP in the product away from the developers and into the Ripple Labs, Inc. vehicle.
Furthermore, the software was not open-source when XRP were created, as the company claims. Rather, Rippled as a whole was closed source and proprietary until 26 September 2013. (And here’s the GitHub commit proving same), although some FOSS code was incorporated into it. Although the “Rippled” software is currently open-source, according to the License.md file currently found in in Ripple Labs’ GitHub repository, Ripple Labs continues to own and assert copyright over the protocol to this day.
Then there’s the matter of the tokens which Ripple claims it received as a “gift.” A very large number of the tokens were, are, and will likely continue to be owned by Ripple Labs. XRP tokens were not “gifted” to Ripple Labs but rather were granted to Ripple Labs by Ripple Labs itself in consideration of and in accordance with certain mutual obligations contained in a commercial contract to which the original Ripple Labs, Inc. was bound. (See, e.g., the language: “[Ripple] Credit Grant.”) This commercial understanding, when signed, was not yet implemented on an “Official Ledger” that was to be created by engineers who either founded Ripple Labs or were otherwise employed by Ripple Labs, meaning that it is exceedingly likely that Ripple Labs owned the resulting work product outright.
The “Official Ledger” was that work product. No “Official Ledger” containing XRP or any transactions on the ledger which is today used as “XRP” existed before Ripple Labs, Inc. (initially named Newcoin Inc.) was incorporated on 19 September 2012. What we call XRP came into being at Ripple Labs, Inc.’s behest and with its very close involvement on 1 January 2013 when Ripple Labs launched what was referred to in the Founders’ Agreement of 17 September 2012 as the “Official Ledger.”
The “Official Ledger” was later called the “Ripple Network” or “Ripple.” Today the “Official Ledger” is called “XRP.” It’s the same thing.
Until recently, this view was shared by Ripple Labs, who wrote in 2013 that “Ripple was created by Opencoin, Inc.” (h/t Michael del Castillo for the image.)
It doesn’t really get much clearer than that. XRP is a Ripple Labs project.
End of discussion.
And that’s fine. Many companies are embarking on token projects and I wish them all the very best of luck. However, only one company is, for whatever reason, trying to convince us that none of this ever happened. That company is Ripple Labs. And that I cannot abide.
2) Is XRP decentralized?
I’ll be staying out of that debate save to say that there is disagreement, and I am happy to point you to it.
Ayes to the right:
Noes to the left:
And in the opinion of BIS:
And with that, my friends, I bid you good evening.