This attitude of deferring to regulatory agencies, which have their own set of institutional biases, on the question of the applicability of securities laws to smart-contract executed issuances of digital tokens that confer zero legal title to a common enterprise, is dangerous to liberty and innovation.
Courts don't create the law, they interpret it (...except in India, where the Supreme Court actually does make laws). The Legislature writes the law.
A security doesn't require a common enterprise, it simply requires that one thing represents an interest in something else. The underlying asset is usually financial or intangible in nature, but that isn't required. There are more specific rules and exceptions, but those vary by jurisdiction.
A security doesn't require a common enterprise, it simply requires that one thing represents an interest in something else.
True, it even works with past and future music royalties.
David Bowie (together with his financial manager and an investment banker) was probably the first to come up with securisation of non-tangible assets.[1]
Utility tokens aren't securities, but the problem is that there are no utility tokens. Everything calling itself a utility token isn't, because they're all marketed as investments (maybe with the exception of SiaCoin).
There continue to be strong legal arguments for utility tokens not being securities:
https://www.coinbase.com/legal/securities-law-framework.pdf
This attitude of deferring to regulatory agencies, which have their own set of institutional biases, on the question of the applicability of securities laws to smart-contract executed issuances of digital tokens that confer zero legal title to a common enterprise, is dangerous to liberty and innovation.