La SEC américaine qualifie « l'activité d'extraction de cryptomonnaies par preuve de travail (POW) » : ne relève pas des activités de titrisation
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La SEC américaine qualifie « l'activité d'extraction de cryptomonnaies par preuve de travail (POW) » : ne relève pas des activités de titrisation
Lorsque des mineurs combinent leurs ressources informatiques avec celles d'autres mineurs afin d'augmenter leur taux de réussite du minage, ils n'ont pas une attente raisonnable de profit découlant des efforts entrepreneuriaux ou de gestion d'autrui.
Dédié à des analyses Web3 approfondiesSource: SEC
Translation: Wu Shuo Blockchain
Introduction
As part of its efforts to clarify the application of federal securities laws in the realm of digital assets, [1] the Division of Corporation Finance of the U.S. Securities and Exchange Commission (SEC) issues this statement regarding certain "proof-of-work" (PoW) network mining activities to articulate its views. [2] Specifically, this statement addresses activities involving participation in the consensus mechanism of a public, permissionless network through programmable functions inherent in the protocol itself, and obtaining or using corresponding digital assets to maintain the technological operation and security of the network. This statement refers to such digital assets as "Covered Crypto Assets," [3] and the mining of these assets on PoW networks as "Protocol Mining." [4]
Protocol Mining
Networks rely on cryptography and economic mechanism design to validate transactions and provide settlement assurances without requiring designated trusted intermediaries. Each network operates under a specific software protocol (computer code), which programmatically enforces particular network rules, technical requirements, and reward distributions. Each protocol includes a "consensus mechanism"—a method enabling geographically dispersed, independent computer nodes across the network to reach agreement on the state of the network. Public, permissionless networks allow anyone to participate in network operations, including validating new transactions according to the network’s consensus mechanism.
PoW is a consensus mechanism that incentivizes transaction validation by rewarding network participants known as "miners." [5] PoW involves verifying transactions on the network and bundling them into blocks added to a distributed ledger. The "work" in PoW refers to the computational resources miners use to verify transactions and add new blocks. Miners do not need to hold Covered Crypto Assets on the network in order to validate transactions.
Miners use computers to solve complex cryptographic puzzles in the form of mathematical equations, competing with one another; the first miner to solve the puzzle gets to receive and validate (or propose) a block of transactions from other nodes and add it to the network. In return for providing verification services, miners are rewarded—typically newly minted or created Covered Crypto Assets issued pursuant to the protocol's terms. [6] Thus, PoW incentivizes miners to commit necessary resources to add valid blocks to the network.
Miners only receive rewards after their computational results have been verified as correct and valid by other nodes in the network via the protocol. Once a miner finds the correct solution, it broadcasts it to other miners so they can verify whether the puzzle was correctly solved and whether the reward should be granted. Upon verification, all miners add the new block to their respective copies of the network. By requiring miners to invest significant time and computing power in transaction authentication, PoW ensures network security. This verification process not only reduces the likelihood of network disruption but also decreases the possibility of miners altering transactions (such as engaging in double-spending attacks). [7]
In addition to solo mining, miners may join a "mining pool," combining their computational resources with those of other miners to increase the probability of successfully validating transactions and mining new blocks. Mining pools come in various types, each with different operational models and reward distribution mechanisms. [8] Pool operators typically coordinate miners’ computational resources, maintain hardware and software infrastructure, manage security measures, and ensure miners receive their rewards. In return, pool operators deduct a fee from the rewards received by miners as commission. Reward distribution methods vary, but generally allocate rewards based on the proportion of computational resources contributed by each miner. Miners are under no obligation to remain in any given pool and may choose to leave at any time.
Division of Corporation Finance’s Views on Protocol Mining Activities
The Division of Corporation Finance believes that, under the circumstances described in this statement, "mining activities" related to Protocol Mining (as defined below) do not constitute offers or sales of securities within the meaning of Section 2(a)(1) of the Securities Act of 1933 and Section 3(a)(10) of the Securities Exchange Act of 1934. [9] Therefore, the Division believes that persons participating in mining activities are not required to register such transactions with the Commission under the Securities Act, nor are they required to rely on any exemption from registration provided under the Securities Act.
Mining Activities Covered by This Statement
The above view of the Division of Corporation Finance applies to the following Protocol Mining activities and transactions (collectively referred to as "mining activities," with each individual act called a "mining act"):
Mining Covered Crypto Assets on a PoW network;
The role of mining pools and mining pool operators in the Protocol Mining process, including their roles in receiving and distributing rewards.
Only mining activities falling within the following types of Protocol Mining are covered by this statement:
• Solo Mining: A miner uses its own computational resources to mine Covered Crypto Assets. The miner may operate a node independently or jointly with others.
• Mining Pool: A miner combines its computational resources with those of other miners to increase the chances of successfully mining a new block. Rewards may be paid directly from the network to the miner or indirectly through a mining pool operator.
Detailed Analysis
Section 2(a)(1) of the Securities Act and Section 3(a)(10) of the Exchange Act both define "security" by listing several financial instruments, including "stocks," "notes," and "bonds." Since Covered Crypto Assets are not explicitly listed in these definitions, we apply the "investment contract" test established by the U.S. Supreme Court in SEC v. W.J. Howey Co. (the "Howey Test") to analyze certain Protocol Mining transactions. [10] The Howey Test is designed to assess transaction arrangements or instruments not clearly within the statutory definition based on their economic reality. [11]
The key inquiry under the economic reality analysis is whether the transaction involves an investment of money in a common enterprise with a reasonable expectation of profits derived from the entrepreneurial or managerial efforts of others. [12] Federal courts subsequent to Howey have further explained that such "efforts of others" must be "undeniably significant—that is, managerial efforts that are central or essential to the success of the enterprise." [13]
Solo Mining
Solo mining does not involve a reasonable expectation of profit derived from the entrepreneurial or managerial efforts of others. Miners contribute their own computational resources to secure the network and receive rewards dictated by the network protocol. The expectation of receiving rewards is not dependent on the managerial efforts of any third party, but rather arises from the miner’s own performance of administrative or technical functions—maintaining the network, verifying transactions, and adding new blocks. Therefore, the rewards should be viewed as compensation for services rendered to the network, not as profits derived from the efforts of others.
Mining Pools
Likewise, when miners combine their computational resources with others to increase mining success rates, there is still no reasonable expectation of profit derived from the entrepreneurial or managerial efforts of others. A miner’s expected returns primarily stem from its own投入 of computational resources. The management activities provided by pool operators are largely administrative or technical in nature. While potentially beneficial to miners, these activities do not meet the threshold of "efforts of others" required under the Howey Test. Miners do not join pools with the expectation of passively profiting from the management activities of pool operators.
For further information, please contact the Office of Chief Counsel, Division of Corporation Finance:
https://www.sec.gov/forms/corp_fin_interpretive
[1] The term “crypto asset” in this statement refers to assets generated, issued, and/or transferred via blockchain or similar distributed ledger technology networks (collectively “crypto networks”), including but not limited to assets referred to as “tokens,” “digital assets,” “virtual currencies,” and “cryptocurrencies,” which rely on cryptographic protocols. Additionally, in this statement, the term “network” refers to crypto networks.
[2] This statement reflects the views of the staff of the Division of Corporation Finance (the “Division”). It is not a rule, regulation, guidance, or formal statement of the U.S. Securities and Exchange Commission (“Commission”), and the Commission has neither approved nor disapproved its content. Like other staff statements, this statement carries no legal force or effect, does not alter or amend applicable laws, and creates no new or additional obligations for any person or entity.
[3] This statement concerns only certain specific “Covered Crypto Assets” that themselves lack intrinsic economic attributes or rights, such as generating passive income or granting holders rights to future earnings, profits, or assets of an enterprise.
[4] This statement addresses only Covered Crypto Asset transactions related to Protocol Mining and does not address other types of Covered Crypto Asset transactions.
[5] This statement discusses the “proof-of-work (PoW)” mechanism generally and does not cover all specific variants of PoW or particular PoW protocols.
[6] Reward rules are predetermined by the protocol. Miners cannot alter the rewards they receive; the reward structure is entirely determined in advance by the protocol itself.
[7] Double spending refers to the situation where the same crypto asset is sent to two recipients simultaneously, which may occur if ledger records are tampered with.
[8] For example, in a “pay-per-share” model, miners are compensated for each valid share or block contributed to the pool regardless of whether the pool successfully mines a block; in a “peer-to-peer” model, the role of the pool operator is decentralized among pool members; and in a “proportional” model, miners receive rewards based on their proportion of contributed hashing power during successful block mining. There are also hybrid pool models combining different operational and reward payment methods.
[9] The views of the Division of Corporation Finance do not determine whether any particular mining activity (as defined in this statement) constitutes an offer or sale of a security. The ultimate determination regarding a specific mining activity must be based on the facts and circumstances of that activity. Where facts differ from those described in this statement—for instance, how pool members are compensated, how miners or other individuals participate in the pool, or what activities the pool operator actually performs—the Division’s view on whether a particular mining activity involves an offer or sale of a security may differ.
[10] U.S. Supreme Court case: 328 U.S. 293 (1946).
[11] See Landreth Timber Co. v. Landreth, 471 U.S. 681, 689 (1985), where the U.S. Supreme Court stated that the proper standard for determining whether an instrument not explicitly included in the definition of “stock” under Section 2(a)(1) of the Securities Act—or some unusual instrument—is a security should be the “economic realities test” established in Howey. In analyzing whether an instrument is a security, “form should be disregarded for substance” (Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)), and “the focus should be on the economic realities underlying the transaction, rather than on the name appended to the instrument” (United Housing Found., Inc. v. Forman, 421 U.S. 837, 849 (1975)).
[12] Forman, 421 U.S. at 852.
[13] See, e.g., SEC v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476, 482 (9th Cir. 1973).
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