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To make the claim that it’s not a common enterprise, you’d have to actually define the term “common enterprise”. Can you link to an authoritative or reliable d

by EGreg 3y ago

To make the claim that it’s not a common enterprise, you’d have to actually define the term “common enterprise”. Can you link to an authoritative or reliable definition? Or case law? Really anything? That would tive us a basis for discussion. Merely claiming “it’s not a common enterprise” cause it’s your feeling, is a weak defense if SEC were to bring a case.

hef19898 3y ago
Why stop at defining "common enterprise"? We should also define "define", "common", "enter" and "prise". After all we need a common basis, folks!
- EGreg 3y ago
  Terms in law need to have a commonly accepted definition in order for anyone to decide court cases. Sometimes case law has an effect to chnage the definition. What is your point? That definitions are irrelevant, and anyone can claim any combination of words ?
  - hef19898 3y ago
    That, and I am not a lawyer, apparently it is pretty clear what a "common enterprise" is in the context we discuss here. Challenging that definition just because you don't like it might win internet arguments. Wether or not it works in court this time, believe it or not that defence was already tried, will be seen. I guess it won't end too well for crypto so.
    - EGreg 3y ago
      You’re 100% wrong on this one. No one is “challenging the definition”, merely challenging a fallacious statement written on HN which probably got the definition wrong, and step 1 is to post the definition so the statement can be debunked. Legal terms often have idiosyncratic definitions shaped by case law, and you can’t simply use basic English understandings of terms like “common enterprise”. Even in plain English “common enterprise” could have a variety of meanings, and sayjng “that is not a common enterprise” is super problematic. In the case law, there is a clear precedent of hundreds of cases of having a “promoter”, and you are “depending on the efforts of others” to tout the security, and you are “in common enterprise” with that promoter EVEN IF you have never met. If the Yu Gi Oh franchise stops doing the show, that affects your sales. See above, the actual defintion posted… and you will see that, in fact, Yu Gi Oh and Pokemon definitely has a common enterprise in the legal definition of the term
      - hef19898 3y ago
        If you are so convinced, you should find a way to test your theory around Yu Gi Oh in court. Regarding crypto exchanges, we will get our answers soon enough. The majority of people, crypto still is not mainstream, is better served sticking with the existing rules and regulations. And definitions, how do I hate this J. Peterson / Ben Shapiro debate technic of never coming to the point and dragging everything down to pseudo-intelectuall pedantry.
        EGreg 3y ago
        I argued with Ben Shapiro about his "Jews in Name Only" remarks, for instance. One can always hide behind vague phrases like that – what Wikipedia calls "weasel words" – and keep changing them. Look through my comment history -- do I strike you as someone who dances around a point, or minces words? I am telling you how it is: you seem to be uninformed on how the US legal system works. Courts can't be used as "test suites" that you can just spin up, and legal jargon isn't the same as plain english, nor is it like code that you can just test for a binary outcome. What you're suggesting is that I waste my time petitioning the SEC to look into Yu Gi Oh or Pokemon, which operated unregistered securities schemes 20 years ago, and they had ample opportunity to look at. I would be one of hundreds of thousands of such petitioners. They would they consult their own appetite for going after them in courts, which they clearly have none for. They care about crypto, they don't care about trading cards and children's shows, pure and simple. They are exercising their discretion in who they go after. And by the way, the actual definition that was posted above, from their official site, is what you'd call vague: The Commission, on the other hand, does not require vertical or horizontal commonality per se, nor does it view a "common enterprise" as a distinct element of the term "investment contract." You could see why, in the face of such vague and amorphous language, a ton of things could be considered "a common enterprise", so the assertion "Yu Gi Oh definitely doesn't have a common enterprise" is laughable. If the SEC wanted to, they'd argue that it does. The definition is extremely vague. The pseudo-intellectual bullshit is actually when you refuse to have consistent definitions, and just drone on about various things. New-Age practitioners or post-modern feminist or other movements have done this. Requiring people to be clear and define terms that sound vague is a basic requirement in math, science, and general rational discourse.
jcranmer 3y ago
https://www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets#_edn10 https://www.sec.gov/corpfin/framework-investment-contract-an... > In order to satisfy the "common enterprise" aspect of the Howey test, federal courts require that there be either "horizontal commonality" or "vertical commonality." See Revak v. SEC Realty Corp., 18 F.3d. 81, 87-88 (2d Cir. 1994) (discussing horizontal commonality as "the tying of each individual investor's fortunes to the fortunes of the other investors by the pooling of assets, usually combined with the pro-rata distribution of profits" and two variants of vertical commonality, which focus "on the relationship between the promoter and the body of investors"). The Commission, on the other hand, does not require vertical or horizontal commonality per se, nor does it view a "common enterprise" as a distinct element of the term "investment contract." In re Barkate, 57 S.E.C. 488, 496 n.13 (Apr. 8, 2004); see also the Commission's Supplemental Brief at 14 in SEC v. Edwards, 540 U.S. 389 (2004) (on remand to the 11th Circuit).
- EGreg 3y ago
  So it seems to me very clearly that the Yu Gi Oh franchise and people having cards in mint condition with a view to resell tnem have "horizontal commonality" or "vertical commonality” with its show which is promoting them. The buyers are depending on the efforts of others (the show producers and promoters) to make their cards worth more.

by EGreg 3y ago

hef19898 3y ago

Why stop at defining "common enterprise"? We should also define "define", "common", "enter" and "prise". After all we need a common basis, folks!

EGreg 3y ago
Terms in law need to have a commonly accepted definition in order for anyone to decide court cases. Sometimes case law has an effect to chnage the definition. What is your point? That definitions are irrelevant, and anyone can claim any combination of words ?
- hef19898 3y ago
  That, and I am not a lawyer, apparently it is pretty clear what a "common enterprise" is in the context we discuss here. Challenging that definition just because you don't like it might win internet arguments. Wether or not it works in court this time, believe it or not that defence was already tried, will be seen. I guess it won't end too well for crypto so.
  - EGreg 3y ago
    You’re 100% wrong on this one. No one is “challenging the definition”, merely challenging a fallacious statement written on HN which probably got the definition wrong, and step 1 is to post the definition so the statement can be debunked. Legal terms often have idiosyncratic definitions shaped by case law, and you can’t simply use basic English understandings of terms like “common enterprise”. Even in plain English “common enterprise” could have a variety of meanings, and sayjng “that is not a common enterprise” is super problematic. In the case law, there is a clear precedent of hundreds of cases of having a “promoter”, and you are “depending on the efforts of others” to tout the security, and you are “in common enterprise” with that promoter EVEN IF you have never met. If the Yu Gi Oh franchise stops doing the show, that affects your sales. See above, the actual defintion posted… and you will see that, in fact, Yu Gi Oh and Pokemon definitely has a common enterprise in the legal definition of the term
    - hef19898 3y ago
      If you are so convinced, you should find a way to test your theory around Yu Gi Oh in court. Regarding crypto exchanges, we will get our answers soon enough. The majority of people, crypto still is not mainstream, is better served sticking with the existing rules and regulations. And definitions, how do I hate this J. Peterson / Ben Shapiro debate technic of never coming to the point and dragging everything down to pseudo-intelectuall pedantry.
      - EGreg 3y ago
        I argued with Ben Shapiro about his "Jews in Name Only" remarks, for instance. One can always hide behind vague phrases like that – what Wikipedia calls "weasel words" – and keep changing them. Look through my comment history -- do I strike you as someone who dances around a point, or minces words? I am telling you how it is: you seem to be uninformed on how the US legal system works. Courts can't be used as "test suites" that you can just spin up, and legal jargon isn't the same as plain english, nor is it like code that you can just test for a binary outcome. What you're suggesting is that I waste my time petitioning the SEC to look into Yu Gi Oh or Pokemon, which operated unregistered securities schemes 20 years ago, and they had ample opportunity to look at. I would be one of hundreds of thousands of such petitioners. They would they consult their own appetite for going after them in courts, which they clearly have none for. They care about crypto, they don't care about trading cards and children's shows, pure and simple. They are exercising their discretion in who they go after. And by the way, the actual definition that was posted above, from their official site, is what you'd call vague: The Commission, on the other hand, does not require vertical or horizontal commonality per se, nor does it view a "common enterprise" as a distinct element of the term "investment contract." You could see why, in the face of such vague and amorphous language, a ton of things could be considered "a common enterprise", so the assertion "Yu Gi Oh definitely doesn't have a common enterprise" is laughable. If the SEC wanted to, they'd argue that it does. The definition is extremely vague. The pseudo-intellectual bullshit is actually when you refuse to have consistent definitions, and just drone on about various things. New-Age practitioners or post-modern feminist or other movements have done this. Requiring people to be clear and define terms that sound vague is a basic requirement in math, science, and general rational discourse.

jcranmer 3y ago

https://www.sec.gov/corpfin/framework-investment-contract-analysis-digital-assets#_edn10 https://www.sec.gov/corpfin/framework-investment-contract-an... > In order to satisfy the "common enterprise" aspect of the Howey test, federal courts require that there be either "horizontal commonality" or "vertical commonality." See Revak v. SEC Realty Corp., 18 F.3d. 81, 87-88 (2d Cir. 1994) (discussing horizontal commonality as "the tying of each individual investor's fortunes to the fortunes of the other investors by the pooling of assets, usually combined with the pro-rata distribution of profits" and two variants of vertical commonality, which focus "on the relationship between the promoter and the body of investors"). The Commission, on the other hand, does not require vertical or horizontal commonality per se, nor does it view a "common enterprise" as a distinct element of the term "investment contract." In re Barkate, 57 S.E.C. 488, 496 n.13 (Apr. 8, 2004); see also the Commission's Supplemental Brief at 14 in SEC v. Edwards, 540 U.S. 389 (2004) (on remand to the 11th Circuit).

EGreg 3y ago
So it seems to me very clearly that the Yu Gi Oh franchise and people having cards in mint condition with a view to resell tnem have "horizontal commonality" or "vertical commonality” with its show which is promoting them. The buyers are depending on the efforts of others (the show producers and promoters) to make their cards worth more.