pjbyrne

There is plenty of legal background for France (and Europe more broadly, eg the German NetzDG) there if you'd care to read the piece, including reference to numerous censorial provisions of French law which make France suboptimal vis a vis the U.S. for social media operations including Loi no. 2020-766 du 24 juin 2020, the EU DSA, and the applicable French aiding and abetting statute, the last of which would not have been usable against Durov in the U.S. absent specific intent to commit an unlawful act.

The conditional immunity under the DSA is also not as comprehensive as the broad immunity under Section 230, but that was out of scope so I didn't get into it. I do admit the piece assumes some familiarity on the part of the reader with the existing problems around the EU regulatory schemes relating to speech and content removal.

If you have any constructive suggestions I'll be happy to consider including them and giving you appropriate credit, just chuck them in the comment section. tl;dr though, in my view, France is not a great place to incorporate and run a social media company.

The article was written for the benefit of Americans with business operations in France, so understanding why America is way better than France to run a social media company is relevant information.

That the article wound up being circulated to a bunch of Europeans who thought it was an article about French law after someone posted it on HN is something of an accident; the article isn't for them (unless of course they're planning on starting a social media company, in which case leaving Europe and setting up shop in America on a permanent basis would be recommended). The very fact of his arrest is enough for Americans to know to steer clear of the EU going forward.

> The construction was specifically designed such that the person who figures out the hash collision is the owner... It's not a matter for courts to decide

Anything is a matter for the courts to decide. Look up Popov v. Hayashi, where the courts tried to sort out who owned the ball that was Barry Bonds' 73rd home run. 2 guys caught it at more or less the same time. There was a dispute. The courts applied equitable principles to determine how ownership should be divided. The day will come when someone needs to make a similar call in relation to BTC.

Bingo. This is the sort of scenario for which the courts don't currently have rules to decide to whom the coins (qua krypto-property) should belong.

Thanks!

Possibly, I don't know. The point of the post really was to show that the pre-sale process was amenable to a more forensic/scientific analysis than anything else.

I agree it's all debatable. This post deals only with the "common enterprise" prong as that appears to be the prong of the test that Coin Center and others are trying to challenge most assertively.

Centralization of holders makes it look like a more traditional scheme with a central promoter.

Well, it's either the ideal auction or it isn't. The question is how likely is it that a coin auction running for two weeks would produce a curve like that. I can't find any others in crypto so far, though I am open to being proven wrong if someone can show these are common and rule out promoter action as being the cause.

Making purchasers in multiple lots isn't nefarious at all, it just disguises how many purchasers there are, which is a relevant consideration for the _Howey_ analysis. If (arguendo) 85% of the tokens are in the hands of 1 person, that would militate against a finding that Ethereum is like Bitcoin and lacks the necessary degree of organization to constitute a scheme in which any one person shoulders personal civil or criminal liability.

If, again for sake of argument, they find that the largest hodler only holds 1% of the tokens, then that tends to make it more difficult to identify a central promoter and parallel investors (think: LPs without a partnership deed) which is usually required to bring enforcement.

I'm not making normative claims here, just saying that those three factors (common fund, repo, likely centralization of Ether holdings in few hands) tends to suggest the scheme is in the "regulated" bucket rather than the "unregulated" bucket.

Duly corrected.

Well it's not the regulators who make the decision and set the precedents, it's the judges. Regulators are currently trying to figure out, to the extent existing precedents are inadequate, how to extend by analogy the existing precedents to the new circumstances in such a way as to convince a judge to extend the precedent. This is how a common law system is designed to work.