Bryan Jacoutot

Bryan Jacoutot's avatar
Bryan Jacoutot
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Lawyer, Bitcoiner. Not necessarily in that order
Some folks keep talking about how groundbreaking it is that judges in some of the SEC cases are saying crypto tokens aren’t securities “standing alone.” In my view, that’s a total nothingburger. Here’s why 👇🏻 The SEC’s theory against the altcoins they’ve pursued has been, since 2017, that they constituted “investment contracts,” which the SEC has jurisdiction over thanks to several statutes passed by Congress, including this one: 15 USC § 77b) An “investment contract” is defined by the courts (specifically, the Supreme Court in Howey). You probably know the now familiar 4-part test. But the preamble to that test is just as important. Before getting to the 4 factors, Howey also notes that “an investment contract” is first and foremost a “contract, transaction, or scheme…” Each of these categories implies some sort of volition on the part of the issuer and an investor. Thus, it would seem that no instrument, when considered in isolation, satisfies the definition of an “investment contract” standing alone. And the mere creation of a token (be it XRP, Luna, or any other), without more, is OF COURSE not an unregistered securities “offering.” It must first be offered and accepted by an investor to bring the transaction within the ambit of SEC authority. And it is the manner of that offering coupled with the surrounding facts and circumstances that turns any asset into a security under the investment contract theory that the SEC has put forth. So if someone tells you how HUGE a deal it is that Judge Torres or some other judge said that XRP or any other token is “not a security” by itself, just know that they’re overplaying their hand. Indeed, courts have been saying this since early 2020. Take the Telegram Blockchain case: “[T]he security in this case is not simply the Gram [token], which is little more than alphanumeric cryptographic sequence… the Court finds that the appropriate point at which to evaluate this scheme to sell and distribute Grams is at the point at which the scheme's participants had a meeting of the minds, i.e. at the time of the 2018 Sales…” SEC v. Telegram Grp. Inc., 448 F. Supp. 3d 352 (S.D.N.Y. 2020) See? Nothingburger (Zap and/or share if you found this useful!)
🚨 Today a different SDNY District Court Judge emphatically rejected Judge Torres' Howey analysis in the recent Ripple case. Recall that Torres held that sales of XRP to institutional investors could be unregistered securities while similar "programmatic" sales to retail were perfectly acceptable. Unlike Torres, this District Court (which is considering the SEC's action against Do Kwon and Terra Luna) flatly declared that Howey "makes no such distinction between purchasers." This is the first court to have occasion to analyze a token offering since Judge Torres put forward her novel (and in my view, incorrect) view on the distinction between institutional and programmatic sales. And it was not a favorable early reception. image
Elon’s payment model vs. the Nostr-Native Bitcoin implementation | The end of clickbait? | What’s the best way to incentivize quality content creation on the internet? I have some thoughts: Let’s say I make a great legal analysis post on twitter on something very topical. The other day I made two tweets (one being a thread) that garnered over half a million views. Pretty good! But what was my reward for that and—more importantly—how am I incentivized to continue? Well, my post was punchy, topical, and a little controversial. So it went “viral” (for me). I gained a lot of new followers that will hopefully stick around. And i got a nudge into the realm of being able to make money based on the content I produce here—15 million impressions gets you in the door nowadays But I’ll tell you something I’m struggling with. This model incentivizes clickbait, dramatic, and stubbornly opinionated (read: poor quality) content. Because if I get you to merely click on and view the content, then I’ve won. And so has Elon. But the public discourse on whatever topic I’m promoting probably lost. I see this with top “influencers” all the time. The content is largely thoughtless, recycled, unoriginal, and needlessly combative. It’s the worst kind of debate. If you already agree with what’s being said, you love it and share it. If you disagree, you yell at it and passively attack it (i.e. “check out how dumb this idiot is. Let’s attack them, HomeTeam”). Either way, though, the impressions grow. And so does the creator’s wallet and so does Elon’s. How do we stop this? Enter the nostr model created by @jb55. Nostr is a lot like Twitter, except it‘s decentralized and, accordingly, a little clunky (for now). But more importantly, in being decentralized it didn’t sell out and create some scam token to bootstrap the network effects. It’s doing the hard work of organic growth. And it is Bitcoin native, which permits micropayments for quality content. Not just provactive content. This creates an amazing incentive structure for creators and public discourse more broadly. They are rewarded not just for having outrageous and objectionable content, but for producing something people actually find interesting. How? Because the user controls what creators they reward with micropayments on Bitcoin’s ligtning network, and what content they merely share, and what content is obviously trash. And unlike Twitter, the trash isn’t rewarded. Take my small example below. I made a legal analysis post. It got a small amount of traction on nostr and some anons rewarded me with a few micropyaments. Thanks Anons! That’s tangible value in my pocket for my content. And it didn’t have to go viral for me to experience the reward. World changing in and of itself? No. But it could be. Imagine a world where good content is elevated to the top of discussion on its merit, rather than trashy content because it’s outrageous and objectionable? And further, imagine content creators are rewarded for the good content, and punished for the bad (via no payments from the users) Perhaps it could could lead to the long overdue destruction of clickbait. Perhaps it would improve internet (and real world) discourse. And perhaps it will minimize the influence of our clearly unqualified gatekeepers in determining what is elevated to the top of public discussion. Who knows. But I’m glad it exists, and I hope it succeeds. Tired of clickbait and trash influencers? Maybe, just maybe, Bitcoin Fixes This. image