> The test of whether there is an "investment contract" under the Securities Act is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others; and, if that test be satisfied, it is immaterial whether the enterprise is speculative or nonspeculative, or whether there is a sale of property with or without intrinsic value.
That decision defines, in that very part you quote, an investment contract (where basically one expects profit directly without working for it) as a security. That is not surprising really, as it is perhaps the most trivial form of it.
But that was not my question. You, and others have also in conversation, stated that has a requirement for something to be legally regarded as a security. That is what seems unlikely to me.
The very decision you quoted starts out with:
> the Securities Act of 1933 defining "security" as including any "investment contract,"
Note the word "including". That A is B does not mean that B is A. There are other forms of securities, and this document alone should not lead anyone to believe that if they only append to their contractual terms that tokens are to be regarded without use or value, that they somehow would not legally be selling securities anymore.
Note, however, that “investment contract” is one of very many things that are securities (see the recursive definition at 15 USC Sec. 77b(A)(1)), so anything that is an investment contract by the Howey test is a security, but so are lots of things that are not investment contracts.
> The test of whether there is an "investment contract" under the Securities Act is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others; and, if that test be satisfied, it is immaterial whether the enterprise is speculative or nonspeculative, or whether there is a sale of property with or without intrinsic value.
https://supreme.justia.com/cases/federal/us/328/293/case.htm...