Law of Code

The DeFi Education Fund and co-plaintiff Beba, an apparel company based in Texas, recently filed a pre-enforcement suit challenging the SEC’s regulation by enforcement approach to crypto and their policy that free airdrops are securities transactions. Amanda Tuminelli serves as the DeFi Education Fund's chief legal officer where she leads the organization's impact litigation and policy efforts. Jake Chervinsky recently joined Variant as Chief Legal Officer, where he leads the firm's legal team, and works closely with portfolio founders to overcome the regulatory hurdles holding them back. He’s a board member for the DeFi Education Fund. Show highlights: [1:04] Facts and background. [3:36] Why bring a pre-enforcement action? [8:02] Free airdrops under existing securities laws. [13:12] Challenging the SEC's rules. [22:11] If DEF and Beba win the case, what's next? & much more. Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

After the DEF submitted an amicus brief in the Roman Storm matter, which involves Tornado Cash, I spoke with the two authors: Amanda Tuminelli serves as the DeFi Education Fund's chief legal officer where she leads the organization's impact litigation and policy efforts. Jake Chervinsky recently joined Variant as Chief Legal Officer, where he leads the firm's legal team, and works closely with portfolio founders to overcome the regulatory hurdles holding them back. He’s a board member for the DeFi Education Fund. Show highlights: [1:32] Roman Storm and Tornado Cash [10:53] The role of the DEF in matters like this [13:31] Three theories of criminal liability for software developers [18:50] Why the government brought this case [22:18] Terminology: Property interests, possession, control [23:07] The future of this case & much more. Mentioned: Cravath paper on control. Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

Co-founded by longtime cryptolawyers Gabriel Shapiro and Alex Golubitsky, the mission of MetaLeX (which means beyond law) is to combine legal structures and autonomous tech to create best-in-class solutions serving DAOs, devs, and internet denizens with a suite of interoperable autonomous law solutions, which they refer to as MetaLeX OS. The goal is a bold one: Separate law from nation-states in a manner similar to how Bitcoin separates money and Ethereum finance from nation-states. [1:14] What is MetaLeX?[6:16] BORGs, explained.[8:12] BORG vs. DAOs.[15:55] Cybernetic law.[25:36] Expecting the law to act in appropriate, equitable manner.[31:36] Autonomous code and the future.[35:36] What is "deal technology" an how is it used[42:15] Learnings from bridging the gap between the code and the law.& much more. Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

Stéphane Daniel (@stephdan_law) is a Partner at d&a partners, an independent law firm dedicated to tech and blockchain entrepreneurs in France and the EU. Stéphane advises high-tech firms with their structuring, fundraising, and M&A transactions. He was notably involved in the first legal structuring (under French law) of DAOs and regularly advises companies on equity, debt, token, or hybrid fundraising and M&A transactions involving blockchain companies. Show highlights: [4:01] Legal consequences of turning on UNI's fee switch [15:02] A different approach: veCRV [18:59] Examining the differences between the veCRV, CRV and UNI proposal [32:22] The importance of decentralization under EU law [36:50] What non-EU projects should know about MiCA [40:38] Stephane's genesis block [47:26] Habits and advice Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

Chris Giancarlo (@giancarloMKTS) is senior counsel and Co-Chair of the Willkie Digital Works practice in the firm’s New York office. Chris served as the thirteenth Chairman of the U.S. CFTC, where he oversaw regulation of the futures, options and swaps derivatives markets. During his tenure at the CFTC (2014-2019), Chris oversaw the first bitcoin futures products entering the marketplace. He’s also published a book, CryptoDad: The Fight for the Future of Money, which I highly recommend. Show highlights: [1:14] Digital based monetary systems [16:25] Writing guides for entrepreneurs [26:06] Leading the CFTC [31:18] Gensler, the SEC and the CFTC [35:36] Why embrace Blockchain? [1:05:17] Activity-based regulation & much more. Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

Eric Hess (@hess_legal) is Founder & Managing Counsel at Hess Legal Counsel, a cybersecurity SaaS platform and consulting company, and hosts The Encrypted Economy podcast. In this episode, we’ll be exploring his recent paper Bridging Policy and Practice: A Pragmatic Approach to Decentralized Finance, Risk, and Regulation. For Part 1, a history of securities regulation in the US, see our prior episode #122. Show highlights: [1:30] Surprising insight about securities regulation [4:30] 2022 White House executive order [11:30] The real reason(s) why crypto projects can register with the SEC [17:00] Why the same risk, same rules philosophy is wrong [26:30] Solutions to problems posed by blockchain [36:00] What Eric has changed his mind on & much more. Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

Primavera De Filippi is a Director of Research at the National Center of Scientific Research (CNRS) in Paris, Faculty Associate at the Berkman Klein Center for Internet & Society at Harvard University, and Visiting Fellow at the Robert Schuman Centre for Advanced Studies at the European University Institute. Her research focuses on the legal challenges and opportunities of blockchain technology and artificial intelligence, with specific focus on governance and trust. Primavera is the author of the book “Blockchain and the Law,” published in 2018 by Harvard University Press (co-authored with Aaron Wright). Show highlights: [1:00] Genesis block [3:00] Copyright law in the digital world [15:00] Metabirkin case [20:00] Code as law [30:00] Moral values [34:00] Blockchains and the Law [39:00] Blockchain-based life forms (Plantoids) & much more.

Jeffrey T. Dinwoodie is a partner at Cravath, Swaine & Moore, and a member of the firm’s Financial Institutions Group. He has served in senior roles at the SEC and the U.S. Treasury Department, including as Chief Counsel to SEC Chairman Jay Clayton and, earlier, as Chairman Clayton’s Trading and Markets Counsel. Disclaimer: Jacob Robinson and his guests are not your lawyer. Nothing herein or mentioned on the Law of Code podcast should be construed as legal advice. The material published is intended for informational, educational, and entertainment purposes only. Please seek the advice of counsel, and do not apply any of the generalized material to your individual facts or circumstances without speaking to an attorney.

Guests Rebecca Rettig, Michael Mosier, and Katja Gilman explore a conceptual framework to detect and prevent illicit financial activities in DeFi while preserving its permissionless nature. Topics covered include the current AML and CTF regime in America, sanctions, and the future of DeFi.

On August 4, 2023, Coinbase filed a brief in support of its motion to dismiss the SEC's lawsuit. This podcast provides an audio version of the brief, along with key takeaways and points made within it. Show highlights: [1:00] Preliminary Statement [6:30] Background on the SEC's charges [11:30] Coinbase's argument for dismissal [13:00] Because the complaint alleges no contractual undertaking beyond the point of sale, no investment contract is pleaded [22:00] The SEC misreads Howey in asserting that a scheme without a contractual undertaking will suffice [29:00] Recent cases do not support the SEC's efforts to use scheme as an escape hatch from statutory text [33:00] The SEC's effort to portray a simple asset sale as a security is an unprecedented stretch [41:00] Any future value that token purchasers on Coinbase and through Prime may hope to reap is not in the profit, income or assets of the issuers business [42:00] The Major Questions Doctrine compels rejection of the SEC's construction of investment contract [49:00] Coinbase is entitled to judgment on the claim that it acts as an unregistered broker through Wallet [50:00] Coinbase is entitled to judgment on the claim that its staking services constitute unregistered securities