Preston Byrne, a crypto industry lawyer, argues different regulatory regimes apply to different ways of building code.
concepts which are factored by a human authenticator which most crypto developers, frequently unknowingly, attempt to program into their smart contract applications, compressed into a single layer as they try to implement a particular specification.“Legal,” of course, pervades all of these layers. Or to paraphrase Jean-Jacques Rousseau “most crypto projects are born free, yet everywhere they are in chains.
Last week, for example, we saw the Tornado Cash indictment come down. There were howls of dissent from much of the crypto community over this due to the perception that the U.S. government was seeking to censor code and suppress open-source developers. Impact Theory, the L.A.-based entertainment company that drew the SEC's ire, basically issued “NFTs” in three tranches. As the SEC summarized in its case filing:
It bears reminding that the Howey Test, the gauge the SEC uses to determine whether something is an investment contract that can be regulated as a security, “embodies a flexible, rather than static, principle.” The test is designed to look towards the substance of the transaction or sale or offering and not how it is labeled when determining whether something is or isn’t a security.The NFT space, which is relatively new, is no different.
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