Recorded last week, out this morning.
“Cryptopocalypse.” Quite timely title for it, too:
Listen to the whole thing.
Recorded last week, out this morning.
“Cryptopocalypse.” Quite timely title for it, too:
Listen to the whole thing.
In the life of a juvenile marmot, there comes a time when these goofy and small, yet noble and excellent, creatures of God must leave the comfort of the burrows of their birth, usually after their first winter, to dig burrows in new, uncharted territories out on the wild frontiers of their colonies (generally speaking: a few hundred yards away).
This bold exploration of the juvenile marmot is absolutely necessary for the colony’s success; first, so the marmot in question can go out to establish himself, thrive and multiply; and second, to make room for new marmots. By striking out on his own, he creates space for all of the marmots in the colony to pursue their individual marmot-y endeavours (eating flowers, pestering hikers, and other way cute stuff) most effectively.
So it is with startup founders. This is just a short note to say that this was my last week as as a director and the COO of Monax, the company I co-founded three years ago; I’m off to pursue other interests.
“Cool story, bro,” I hear you say. “Now that you’re a free agent, what’s next?”
Well, bar admission in New York has been languishing on my to-do list for about ten years. Now seems as good a time as any to get that done. I’ll be on leave for the next 9 months while I read an American LL.M..
Once that wraps, I’ll be back full-time. For now, though, brb.
Warning: this blog post is long.
Today brings us a paper, written by Coin Center and Debevoise & Plimpton, and sponsored by Coinbase, USV, Coin Center and ConsenSys, which explores the question of whether tokens sold on a blockchain are or are not securities under the test of Howey v SEC.
Given what we know of the paper’s sponsors, the paper’s unsurprising conclusion is:
An appropriately designed Blockchain Token that consists of rights and does not include any investment interests should not be deemed to be a security, subject to the specific facts, circumstances and characteristics of the Blockchain Token itself…. given our analysis in the above, it should be characterized as a simple contract, akin to a franchise or license agreement.
Oh! So tokens are acceptable now, all is forgiven and this is now a valid business model?
So I’m going to spend the next 3,000 words taking Coin Center’s proposition apart. The paper arrives at this conclusion because it asks the wrong question. Of course it’s possible to do virtually anything on a blockchain in a legally compliant way, including representing an interest of some kind as a security or not, as any type of data entry you want, whether that be a “token” or otherwise. As one comment on Reddit put it, aptly,
you can make a tree branch into a security if you wrap it in the utterances and ceremonies which make it a tally stick.
This view, mind you, is what informed the innovation known as a private blockchain. With private blockchains, no cryptocurrency is involved and the rights and obligations of all the participants are set out neatly in writing somewhere – with the blockchain used as a distributed reconciliation engine for the participants.
But private blockchains aren’t what we’re talking about here. The instant case concerns the idea, per USV’s Fat Protocols post, that users of a “public” or “unpermissioned” cryptocurrency/blockchain protocol should
become stakeholders in the protocol itself and [be] financially invested in its success. Then some of these early adopters, perhaps financed in part by the profits of getting in at the start, build products and services around the protocol, recognizing that its success would further increase the value of their tokens.
This process/business model follows a simple four-step plan:
The question the paper does not directly answer, and the question everyone would like to see answered, is whether the method for conducting a token sale as they are actually done on a daily basis – the “Bro Down Model™” – is legally compliant.
Given what we are dealing with (selling unregistered investments to unsophisticated investors over the Internet) it is pretty easy for the answer to that question to be “no.” And to reach that conclusion, it doesn’t really matter whether we’re dealing with a security or not.
Let me break it down for you:
Let’s say, for sake of argument, that the tokens issued per the Bro Down Model do turn out to be securities or investment contracts, which is the only way that the “fat protocol” thesis currently being bandied about in the Valley and elsewhere makes any sense.
If something is sold with the expectation or intention that it’s an investment, irrespective of what function that thing performs, it’s going to be deemed an investment contract by the regulator. Investment contracts, as a matter of law, which are offered to the public may only be so offered through the filing of the appropriate documentation/registration statements, the publication of a prospectus and the sale by broker-dealers or equivalent, licensed service providers.
This would need to be done every single time an ICO/protocol offering takes place.
This process is standardised, straightforward, and legally certain. In the real world the process is absolutely mandatory for every offering of investments to the public. However, ICO promoters to date have all chosen not to follow this remarkably simple, standardized process.
Which is odd – since if these transactions were all above-board, legally kosher investments, as they have been marketed, I can’t see any reason why someone wouldn’t try to make them stand up to the scrutiny of the regulators. Surely an opportunity to legally access public capital markets with a simple coin is an opportunity too good to pass up.
But I digress.
When cryptogeeks talk securities law, Dunning and Kruger are never very far away. A first-year trainee lawyer in a banking seat has the requisite training to see that blockchain token-sale transactions would not pass muster with the regulators. And by “not pass muster,” I mean not even close.
The entire “fat protocol” thesis re: blockchain tokens only makes sense if the tokens are in fact purchased for the purpose of investment and asset price appreciation. Which all ICO promoters, deep down in their hearts, know. But refuse to admit.
Let’s revisit the “fat protocol” blogpost quoted above, only this time, let’s put some text in bold:
become stakeholders in the protocol itself and [be] financially invested in its success. Then some of these early adopters, perhaps financed in part by the profits of getting in at the start, build products and services around the protocol, recognizing that its success would further increase the value of their tokens. (emp
That these tokens are envisioned to have value in market exchange is more or less admitted by Coin Center where the paper issues this recommendation:
(Scheme promoters should decide on) the percentage of the total token supply that represents a fair reward for the work of the development team and advisors.
yet the USV-sponsored Coin Center paper goes on to contradict itself by saying:
Marketing a token as a speculative investment, or drawing comparisons to existing investment processes, may mislead or confuse potential buyers. It may also increase the likelihood that the token is a security.
These ideas are, from a securities law perspective, not reconcilable. One cannot say something one sells to third parties is not an investment if (a) the value of that thing is tied to the performance of the project and (b) you plan to provide that thing to developers in consideration of their work on that project, with the expectation that they can cash out.
Coin Center’s 27 pages’ worth of legal gymnastics earlier today struggled desperately to explain why ICO transactions are not necessarily securities or investment contracts and are in fact some other kind of legal critter. So let’s be charitable and give Coin Center & friends the benefit of the doubt – and suppose they’re right.
This is still not a green-light where we can with confidence say
“OK, so the Bro Down Model is just like selling knitted jumpers from a local store. Let’s sell tokens willy-nilly. WORD UP.” *fist bump*
To the contrary: we have to explain what, exactly, these non-investment investment tokens actually are.
Even if token sales aren’t investment contracts, there’s unquestionably a contract somewhere in here to sell them. Where promoters plead “decentralization” to try to disclaim that any contract exists, there are still unquestionably inducements and representations made by promoters – marketing – to buy into these schemes, otherwise we would not know they exist.
Misbehaving in any way in relation to the promotion of a token scheme can still attract extremely serious criminal penalties of various kinds, depending on:
A range of potential civil and criminal sanctions are therefore available depending on the fact pattern. They range from the relatively benign such as
to the more serious such as
to show-stoppingly, life-endingly, extremely serious e.g.
This is to say nothing of the tax consequences of operating such a scheme, liability for which (absent a legal entity) would arise personally against each of the scheme’s promoters, likely through the lens of a Partnership Act 1890 general partnership or local equivalent.
When enforcement comes, false or exaggerated statements are what is most likely to get scheme promoters into trouble. In terms of what statements we typically see made out in the field, cryptocoin promoters are not known for sober restraint and are usually not *that* careful with the representations they make.
Assuming that “rights” exist at all – as the Coin Center paper does – presupposes the existence of a licensor/franchisor, i.e. someone against whom the “right” can be enforced. Tokens that follow the mold of Bitcoin or the “fat protocols” idea espoused by USV, on the other hand, are designed to have standalone value which is intrinsic to the token and does not depend on a third party to redeem or honour it.
These two approaches are mutually exclusive.
As anyone who knows how a crypto-token ICO works, “public blockchain” systems with exchange-listed tokens follow the latter approach (coins, intrinsic value, not redeemable). Where there’s no licensor/franchisor, there is only
Because of this, it’s impossible for there to be legally binding licences or franchise agreements, because contracts require counterparties. The suggestion from Debevoise that we could characterise blockchain tokens created through a token sale as being licenses or franchises is therefore not accepted. Legally, what we’re dealing with is
Here, as with many ICOs, there are no rights and obligations conferred – just tokens which serve no practical function and which value depends on whether people will buy them, and little else.
It is not therefore something I could recommend as a prudent structure for a transaction.
Different set of issues, but still real potential for a crap sandwich. Including AML/KYC issues and money transmission issues. World of pain, etc.
Trying to get around public offering rules strikes me as a bit of a minefield and not worth the risk.
The law wasn’t born yesterday. Saying a token is “purely functional” or a “software product”, so therefore “not an investment” is language we’ve seen before – the Federal Trade Commission observes that fraudulent investment schemes (of the non-cryptocurrency variety) often promise “consumers or investors large profits based primarily on recruiting others to join their program, not based on profits from any real investment or real sale of goods to the public. Some schemes may purport to sell a product, but they often simply use the product to hide their pyramid structure.”
For this reason, legitimate investments don’t try to walk the line – they try to be two miles away from the line, and on the right side of it.
It would be easier to just do things correctly, constitute your token as a security on a private chain and publish an offering circular. As Patrick Byrne’s T0 is planning to do.
But saying we should listen to Sherriff McLawdog all the time stifles innovation! I hear you cry.
Poppycock. If you want to get investment from someone, there are ready categories – VC, equity crowdfunding, bank debt, convertible debt – which a young blockchain entrepreneur can and should avail him/herself of in order to obtain working capital for his or her business. These legal classifications involve the entrepreneur obtaining that capital, usually from a sophisticated investor, after setting out a detailed business case and setting out in writing, the legal rights which his or her investor will obtain in the business in exchange for their money.
When someone is selling a coin, on the other hand, this means that someone is trying to get money very quickly from unfussy, unsophisticated investors who are grateful for the chance to get in on the ground floor of the “next big thing.”
Because they’re unsophisticated, in consideration they do not insist upon, and therefore do not receive, any rights in the business which those funds build in return (e.g. equity, interest, or a share in the profits).
I repeat: someone selling you a coin is bootstrapping their business with your money, and may very well be giving you jack squat – no stake – in their business in return.
Experience shows that unsophisticated investors are not particularly aware of how badly they’re treated by promoters of these ICOs or similar schemes.
This, of course, is questionable from a legal perspective. Its questionableness would be more obvious if the coin-sellers were to promise a security and give you nothing in return; you could take your fake share certificate or fake secured loan to a lawyer, who could undertake some inquiries, and tell you whether the document were genuine/enforceable or not.
Turn a fake “share” into a “coin,” however, and suddenly all bets are off? I don’t think so – and I don’t think regulators such as the UK FCA or the Securities and Exchange Commission think so either although, for reasons known only to God, they have so far failed to drop the flaming hammer of justice on these schemes.
So, when we see a project not choosing a legal framework up front and saying “the software rules all,” it means, more often than not, that someone promoting a ICO has a compelling interest in not following the formalities because they’re out to screw you.
Doing things on a purely P2P basis has been shown to frustrate enforcement enough that, at least in the short term, scheme promoters are able to get away with it. But ignoring the law doesn’t mean it doesn’t exist.
Blockchains and cryptocurrencies are not a new paradigm in personal property or the law of obligations. When enforcement occurs – as it surely will – courts will look at the arrangements and take the initiative in classifying them themselves. That’s generally not a good thing – making an affirmative choice to be this thing or that (e.g. a LLC or a Limited Company) comes with significant tax, liability, or ease-of-doing-business benefits which you will very likely lose if you let a court make that decision for you (and, say, calls your blockchain critter a general partnership or a mere misrepresentation).
The question then turns to why this subject is coming up again today, given how much the tech has moved on since the altcoins’ heyday (and collapse) three years ago.
I have no idea why any honest new business would want to run an ICO unless they were supremely poorly advised. Entrepreneurs owe their users better treatment, it’s commercial suicide from a VC or new business development standpoint, and creates a huge contingent risk of future enforcement action.
One theory I have is that some companies in the “blockchain” space got into Bitcoin or some other coin – hard – and possess such an intractably deep-seated loss aversion bias that they’re held in thrall to the Almighty Coins, unable to cast off their original thesis, and incapable of seeing what the space has become. Chiefly:
Because the only other plausible explanation for so many people thinking that crypto-tokens are appropriate investment products is that they’re all on drugs.
I’m going to give them the benefit of the doubt and assume they’re talking their own books.
The 2017 interpretation of the tech is not just legally correct, but it’s morally correct as well – and in keeping with the ethos of open-source software development. There’s nothing “free and open” about a FOSS protocol that costs money to use and causes a direct pecuniary benefit to accrue to early adopters – that’s called a rent, and imposing it runs contrary to the idea that the “free” in “FOSS” should mean both free as in beer and free as in speech.
A point which, over the course of 2017, I shall enjoy pointing out whenever it is prudent to do so.
Click through to Flickr to see an outstanding marmot sighting, courtesy @rezendi.
Part of a two-part series. See Against Tokens: Part II (Token Harder).
Yesterday, I was having lunch with Tierion’s Wayne Vaughan at our local Irish diner when our conversation turned to a rather distressing recent development we’d both noticed in the “blockchain” space.
That development is that certain people who frankly should know better are openly discussing whether speculative investment in “crypto crowdsales” (for the uninitiated, this is the practice of creating a Bitcoin clone or some other distributed protocol, and selling “coins” or “shares” in the protocol directly to the public in exchange for investment funds) should be encouraged.
Long have I been a vocal critic of these schemes. Usually I keep my critiques general (or to myself). Occasionally, when a scheme promoter’s abuse of their users becomes sufficiently outrageous that I feel comfortable calling them out, I’m happy to get specific.
Worse, we’ve been here before.
Back in 2014, it seemed a new hot “bitcoin 2.0” was being released every other week ( be it Dogecoin, Auroracoin, Maidsafe, SwarmCoin, Bitshares, or otherwise). Most of these experiments ended in failure or a slow fade. Now, it seems, for reasons known only to God, the appcoin concept is back on the table again and is being seriously discussed.
I didn’t like alt/appcoins when I first saw them (except Dogecoin because it features a cute dog). And I don’t like them now.
When, with my two outstanding co-founders Casey and Tyler, we founded a smart contracts and blockchain company of our own, we did so in the context of the “altcoin boom” – a time when there were going to be thousands if not millions of cryptocurrencies, all with tokens to be bought and sold.
There was a ton of exceedingly dumb Bitcoin money on the table back then, and if you wanted to get your hands on it, rolling a new “coin” was the surefire way to do so. Dozens of projects went ahead on this basis, and so did their pre-product, pre-revenue token launches, raising five, ten, twenty million dollars a pop.
We didn’t do that. We decided to build a software company instead. And while this took a lot more work with a significantly smaller budget, I don’t regret doing it this way for a second.
I can’t speak for Casey and Tyler, but back in 2014 when we founded our smart contracts company, I was setting out to give people the utility of the blockchain without the coins – the permissioned blockchain. In late 2014 we released what is, to my knowledge, the first blockchain client that did exactly that.
There were a lot of reasons that we set out to do this – chief among them that a distributed BFT database with access controls that have public-key cryptography baked in from the start was likely to be (and has since proven to be) a very useful enterprise tool.
However, in the back of my mind, there was a hope that the advent of a open-source blockchain that would be entirely free to use would put down, once and for all, the distasteful, dishonest, and potentially unlawful promotion of commercially nonsensical investment schemes by dubious actors with questionable motivations.
Free blockchains would outcompete the public blockchains, realising greater efficiencies at a far lower cost. And in so doing they’d expose “coins” for what they really were: well-marketed repackaging of very interesting and powerful distributed database technology which took very interesting and powerful software and turned it into investment fraud.
Despite taking a ton of flak for evangelising the “blockchain without Bitcoin” concept over the last three years, for the most part, the plan has worked. Private chains did, as predicted, prove useful in enterprise, and are furthermore more performant than their public counterparts. As a result, “permissioned blockchains” have seen significantly better traction with honest businesses than their appcoin counterparts.
But that’s only half the battle won. Unfortunately, the quasi-religious allure of “decentralisation” and the possibility of instant, overnight wealth – far from receding – has only grown stronger in recent months. Much as during altcoin boom, the meteoric rise of Ether and Steemit has reignited interest in these “products.”
I’m not going to write chapter and verse on the subject here. But I am going to put down a marker, for future reference, as follows:
This is not the place to argue finer points of international securities and banking law, but simply to point out that there are two camps.
Among those whose opinion on this subject matters (lawyers), the pro-appcoin camp features Coin Center’s Peter van Valkenburgh and Cardozo Law School’s Aaron Wright, both of whom I respect. Against, are myself, and practically every other practitioner I know.
We can only make educated guesses as to what the legal position actually is, since law enforcement has yet to make any firm moves against any scheme promoters on the sole basis that token sale schemes are unlawful. The closest they’ve come is the Securities and Exchange Commission’s action against Josh Garza/Paycoin in respect of the “hashlet” mining contracts (which, it is alleged, were in fact artifices to defraud). On a very different note, we should take notice of FinCEN’s civil enforcement action vs Ripple Labs for operating as an unregistered money services business.
New appcoin issuances will be vulnerable to regulatory attack from both directions.
There are limited cases where private sales of these things might be able to get around the regs. My guess is that traditional transactions will nearly always be preferable as we aren’t exactly seeing firms like Kirkland & Ellis or Cravath, Swaine & Moore falling over themselves to do the first “cryptotoken issuance.” Probably because it took them even less than the ten seconds it took the rest of us to figure out that crypto-token issuances are a legal-technical crap sandwich par excellence.
And before you mention it, Switzerland and the EU have these laws too – different laws, with different requirements, that would need to be complied with as well at the same time if you’re selling securities there. America is not alone in this respect.
Sorry to disappoint, GDAX.
Unlike much of the libertarian literature (such as Murray Rothbard) which Bitcoin aficionados are known to read, law categorises property into very detailed, well-defined categories. Take, for example, a “chose in possession,” chose being the French word for “thing,” which is effectively tangible personal property (a pen, a desk, etc.).
This should be contrasted with a “chose in action,” literally a “thing in action,” i.e., something which has no existence save that which is recognised by a court of law in the context of an action (a proceeding or lawsuit). A chose in action is a right to sue. Debts, shares, and other documentary intangibles fall within this category of property.
With any chose in action (with a share, e.g.) there are very rigid formalities which need to be complied with. An entity must exist. It must have constitutional documents. Those constitutional documents will set out, among other things, the classes of shareholders and what they say will determine the rights of those shareholders vis-a-vis each other and the company. In turn, shareholders’ legal status as shareholders (as recognised by a court) will determine their rights vis a vis the rest of the world (e.g. in a bank bail-in situation).
This is of relevance when looking at, say, an insolvency scenario when a company is being wound up and a distribution of assets needs to take place, or when a change of course is needed and the shareholders decide to throw the incumbent management out.
The number of formalities that need to be complied with is daunting. Complying with them is not easy and requires expert help. So when I see something like this:
…I don’t see “tokens” which are “shares” in a “company.” I see no company; I see no shares; I see no rights. I see no formalities. I see nothing, except perhaps a cargo cult corporation. Because a chose in action is that which a court will enforce – not what the issuer says it is.
An “equity token” that isn’t backed by equity documentation – which a scheme promoter is encouraging people to buy on the basis that it is equity – isn’t equity.
A “debt token” that isn’t actually constituted in a debt instrument – which, despite the fact that it was issued in exchange for nothing, is being traded on the public markets at a discount to “par” – isn’t necessarily a contractual debt.
These are actionable misrepresentations. They might also be securities fraud or a Ponzi scheme.
Even Bitcoin doesn’t get it right.
There are just certain things that grown-ups have to do.
One of those things is obeying the law. Another one is working your ass off before you get paid.
The arguments in favour of appcoin crowdsales are dangerously close to a teen-ager’s gripe that their allowance isn’t high enough (make it easy to get investment capital! IPOs are too expensive!) These complaints reflect the fact that many of the people who are advocating for appcoin-friendly law reform have little to no experience of what it’s like to do business in the real world.
Venture capital is supposed to be hard to obtain. VCs know that out of hundreds of people with an idea, of which perhaps a dozen actually have a good idea, of that, perhaps one or two will be able to execute with alacrity and build a sustainable business out of it.
Similarly, IPOs are supposed to be expensive. Because you need a team of expensive lawyers and bankers to make sure that what you’re selling on the capital markets corresponds exactly with the marketing material you’re selling it with, and that all of the relevant tax, regulatory, and disclosure requirements have been met in full so that people can fairly assess the risk that they’re taking.
By way of example, BitFinEx’s “debt coin” was rolled in three days. I find this incredible – I’ve never done a listed bond deal that took less than six weeks, and have worked on debt instruments which were negotiated for six to twelve months.
It’s not that the tech of a “DebtCoin” issued in this way is superior. To the contrary, my suspicion is that the legal structuring component may be deficient.
All in all, it comes down to the advice our parents and math teachers gave us when we were young. Don’t cut corners, do the work, and you’ll get the right result.
Don’t sell internet funny money. Sell software and services.
Do it the other way, and… well. Only time will tell.