The LBRY case is a small one, affecting what is, by all accounts, a minor crypto project, but the application of law that came out of it had a dramatic effect on the practice of cryptocurrency law and, by extension, the avenues open to founders. Judge Barbadoro conceded that the token may have consumptive uses but held that “nothing in the case law suggests that a token with both consumptive and speculative uses cannot be sold as an investment contract.” He went on to say that he could not “reject the SEC's contention that LBRY offered [the token] as a security simply because some [token] purchases were made with consumptive intent.” Because of the “economic realities,” Barbadoro held that it did not matter if some “may have acquired LBC in part for consumptive purposes.” This was devastating.
To clarify this distinction, the commission released a framework for digital assets in 2019, which identified relevant factors to evaluate a token’s security status and noted that “the stronger their presence, the less likely the Howey test is met.” Relying on this guidance, many speculated that functional “consumptive” uses of tokens would insulate projects from securities concerns. In parallel, complicated tax implications were crystallizing.
After the formation, the US enterprise would become a rump “labs” or “development” company that earned income through licensing software and IP to these new offshore entities — waiting for the day when everything would be different, checking the mail for Wells notices, and feeling a bit jumpy. So, it wasn’t just regulation that drove crypto offshore — it was hope.
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Author / Journalist: Cointelegraph by Aaron Brogan and Jon Van Loo
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