Wow this really does come as a surprise. First thank you global for taking the time to draft this thread. It does mean a lot that someone in the bitshares community thinks so highly of me. I didn't really think that was the case.
Succinctly, I don't have any intentions to run a delegate for three reasons. First, the board of Invictus made a decision without debate or my input back in October of last year that my services were no longer required. I really don't think I can have an effective working relationship with the people who made that decision moving forward. I'd be happy to collaborate where it makes sense and I always promote good technology if it's open source, high quality and solves real problems. Thus I'd be happy to pitch Bitshares as it evolves just like I do Eris, Counterparty and other platforms.
Second, I'm currently involved in several ventures as an adviser and I'm also starting an education venture in 2015 that requires some degree of objectivity. To avoid conflicts of interest, I can't really take a paid advocacy role.
Third, after spending roughly $250,000 on US legal research via Pryor Cashman while at Ethereum, I've come to the opinion that ICOs like angelshares pass the Howey test and thus agents of the company are exposed to unnecessary legal liability. Delegates as fiduciaries are not immune to this liability and it isn't just a fine from the SEC. Furthermore, even if AGS is considered a donation, it seems to me to be a donation solicited with an implicit expectation of return, yet without any accountability from the solicitor (as evidenced by numerous examples, the most recent being the Brian Page audit thread). As I've written in my recent whitepaper, I feel these events are predatory and result in bad outcomes.
As bitshares the technology gets further disintermediated from I3 the company, then I'd be happy to become more involved. This will no doubt happen over the coming months and years and I believe everyone is in this for the long haul anyway. Anyway, thanks again for the consideration.
If it's a gift then it's not going to pass the Howey test. Doesn't the Howey test only apply to investments?
And according to the actual consequences (not speculation) the punishments are a fine. No one in the community has gone to prison because of an unregistered security. I know you are good at math and assessing the risk and at this time the risk of the SEC is objectively not very high.
That doesn't mean there aren't risks at all. Angelshares could have been handled better but I think it has to do with the language you use and the expectations of your audience. If they see themselves as investors because you use the language of investment then maybe it is a security but if you make it a donation or a gift then there is no security. If it's a sale then they are pre-ordering the tokens and again it isn't a security.
So it seems that it is a security or not depending on the language you use and the interpretations of the audience. The solution is to change the language but I can understand if you decide it's just too much risk due to how Invictus was originally set up.
No, I'm not a lawyer. I'm just someone who did and who continues to do a risk assessment based on the behavior of the SEC to this point. So far all of the consequences have been fines in a range from $10,000 to $100,000. This means there is risk but it can be managed and if you paid $250,000 in legal fees you might have been better off just paying the fine if it were to come.
Succinctly, I don't have any intentions to run a delegate for three reasons. First, the board of Invictus made a decision without debate or my input back in October of last year that my services were no longer required. I really don't think I can have an effective working relationship with the people who made that decision moving forward. I'd be happy to collaborate where it makes sense and I always promote good technology if it's open source, high quality and solves real problems. Thus I'd be happy to pitch Bitshares as it evolves just like I do Eris, Counterparty and other platforms.
Second, I'm currently involved in several ventures as an adviser and I'm also starting an education venture in 2015 that requires some degree of objectivity. To avoid conflicts of interest, I can't really take a paid advocacy role.
Third, after spending roughly $250,000 on US legal research via Pryor Cashman while at Ethereum, I've come to the opinion that ICOs like angelshares pass the Howey test and thus agents of the company are exposed to unnecessary legal liability. Delegates as fiduciaries are not immune to this liability and it isn't just a fine from the SEC. Furthermore, even if AGS is considered a donation, it seems to me to be a donation solicited with an implicit expectation of return, yet without any accountability from the solicitor (as evidenced by numerous examples, the most recent being the Brian Page audit thread). As I've written in my recent whitepaper, I feel these events are predatory and result in bad outcomes.
As bitshares the technology gets further disintermediated from I3 the company, then I'd be happy to become more involved. This will no doubt happen over the coming months and years and I believe everyone is in this for the long haul anyway. Anyway, thanks again for the consideration.
Where can we find out more information? I would appreciate any pointers to it.
There is no evidence I've seen that the SEC views it like that but it is definitely within the range of possibility if they really were determined to make something of it. I don't think the SEC would start doing more than a fine because Burnside, Vorhees, and others all got a fine after a settlement. If you cooperate with the SEC then you get a fine so far.
Different lawyers have different stuff to say. So far I would say if you accept donations or do crowd sales it's legal. If you call it an ICO then it is questionable because now you're using investor language which doesn't help. A crowd sale is a pre-sale of the tokens and donations don't count as investments.
But the developers have to be clear in all of their website material that it is a donation. Invictus might have been open to something due to the fact that in the beginning it wasn't so clear. People who got involved in the very beginning might have thought of themselves as investors in Invictus but that is all I can see.
When Angelshares launched I remember them saying it was a donation (not an investment). I remember Bytemaster changing the "social contract" into the "social consensus" and talking about a contract free society. The SEC at most could go after the original members of Invictus but that wouldn't apply to the delegates anymore than it would if the SEC would go after miners of Bitcoin.
So I don't really see where he got that idea from but I do understand that ICO's can dangerous. The way to do it is to accept donations, track donations on a ledger, treat the donations as gifts, and reward your patrons at a later date out of courtesy.
Not only do you not have any securities involved but it would seem that you would lower your taxes as well. It's experimental though, and most of us here are not lawyers. We would have to try it and see just as how we did not know the status of Bitcoin mining for years until the IRS told us.
Probably not going to happen; however, given my situation as the co-founder of the company and also the architect of the largest ICO in history, I'm under a bit more scrutiny.
Why call it an ICO? That language seems like it would attract additional scrutiny. Why not call it a crowd sale or pre-mine?
I think you have a point about being under scrutiny. I just don't know why we as a community choose to use language which would bring scrutiny.