Comment letter

Jun 6, 2023

Comment Letter to FASB

Comment Letter to FASB

Re: Intangibles—Proposed Accounting Standards Update: Accounting for and Disclosure of Crypto Assets:

Dear Ms. Salo,

On March 23, 2023, the Financial Accounting Standards Board (“FASB”) issued a Proposed Accounting Standards Update for Subtopic 350-60 on Accounting for and Disclosure of Crypto Assets (the “Proposed Update”). The Proposed Update requests comments on the issues discussed therein, which Ava Labs, Inc. respectfully provides below:

In summary, we believe that the FASB, through the Proposed Update, implicitly recognizes important concepts that must underlie a sensible classification system for crypto-assets.1 We applaud the FASB’s efforts to increase transparency and the provision by reporting entities of “decision-useful information” to their investors concerning crypto-assets. However, we caution that a one-size-fits-all approach for valuing crypto-assets will not accomplish this goal and could in many instances decrease, and not increase, transparency and decision-useful information.

In this vein, we provide focused answers below to certain questions asked by the FASB, specifically, questions 1, 2, 3, 4, and 16. In our responses, we focus on problems that emerge in applying the same valuation rules as applied to stock to crypto-assets. Facts and circumstances about crypto-assets, including the prevalence of highly concentrated holdings of particular tokens, the thin liquidity of many crypto-asset markets, and the widespread use of lockups (particularly programmatic lockups) all impact the application of these rules. As a result, the use of rules that ignore these factors in valuing crypto-assets would not provide decision-useful information to investors in key circumstances.

After responding to selected questions from the FASB, we propose a specific modification to this framework – one that promotes disclosure and transparency but ensures that financial statements provide investors with better information.

Question 1: Are the proposed scope criteria understandable and operable? Please explain why or why not and, if not, what changes you would make.

We first comment on the scope of the Proposed Update. As noted above, we applaud FASB’s overall policy goal, and our comments are guided by the desire to promote the provision of decision-useful information by entities holding crypto-assets.

FASB acknowledges that a one-size-fits-all approach does not work here, and laudably attempts to tailor the proposed guidance to crypto-assets that meet certain criteria. The criteria outlined in the Proposed Update are as follows:

  1. Meet the definition of intangible asset as defined in the Codification Master Glossary

  2. Do not provide the asset holder with enforceable rights to, or claims on, underlying goods, services or other assets

  3. Are created or reside on a distributed ledger based on blockchain technology

  4. Are secured through cryptography

  5. Are fungible

  6. Are not created or issued by the reporting entity or its related parties

(Proposed Update, at p. 2). Entities are thus required to “measure crypto assets that meet those criteria at fair value with changes recognized in net income each reporting period.” (Proposed Update, at p. 2). Entities also must “present (1) crypto assets measured at fair value separately from other intangible assets in the balance sheet and (2) changes in the fair value measurement of crypto assets separately from changes in the carrying amounts of other intangible assets in the income statement . . . .” (Proposed Update, p. 2).

This definition largely excludes tokens except for those which are an integral component of, and inseverable from, distributed ledger technology itself; what one commenter has referred to as “Native DLT tokens.”2 These tokens, like bitcoin or ether, are in and of themselves stores of value and have no existence or purpose without the associated blockchain. We think that this is the correct scope for the above definition.

That said, while we generally agree with the above criteria, we believe that criterion 2 above could benefit from further clarification. For one thing, it isn’t clear as to which assets would qualify as “other assets,” and we think that 'other assets' should have a broad construction. For example, it would be redundant for the Proposed Update to cover wrapped crypto-assets (that is, where one crypto-asset represents a right in an underlying, or “wrapped,” crypto-asset). Other crypto-assets, such as those with a claim of ownership over digital or tangible assets (what we would conventionally think of as NFTs) also would not appear to fit within the scope of the Proposed Update. Therefore, we suggest clarifying the Proposed Update’s exclusion by expressly providing that “other assets” is to be interpreted broadly.

Further, it is unclear what “fungible” (criterion 5) means in this context. For example, it is unclear to us whether bitcoin is fungible for purposes of this definition, if it can have a specific numeric identifier that makes that particular bitcoin, at least in some sense, unique. We don’t think that this should be the case. For example, U.S. dollar bills (and other denominations) have unique serial numbers but are fungible. Furthermore, there could be multiple tokens that represent a fractionalized interest in an asset (or interest in identical assets). For example, an NFT representing a type of sword in a video game, or an interest in one-tenth of a painting, would be a form of ‘fungible’ NFT. Therefore, we believe that the Proposed Update could benefit from more clarity as to fungibility. This point that is also unclear in Notice 2023-27, which is recent IRS guidance on the subject. We thus note the importance of clarity as to what constitutes fungibility.

Question 2: Is the population of crypto assets identified by the proposed scope criteria appropriate? Please explain why or why not.

The limitations stated above on the scope of the Proposed Update reflect a correct and laudable understanding from FASB that certain types of crypto-assets should be excluded from this reporting. Noting the clarifying changes, we recommend in our comments on Question 1 (including clarification that wrapped crypto-assets are excluded from the scope of this Proposed Update), we generally agree with the proposed scope criteria.

For example, it appears that the second exclusion (as well as the fifth) excludes what might be described as nonfungible tokens (NFTs)—that is, (in our words) tokens with unique digital identifiers that are not a store of value in and of themselves, but rather represent ownership of rights or other assets. NFTs raise unique issues that we agree should not be included within the scope of the Proposed Update.

Question 4: The proposed amendments would require that an entity subsequently measure certain crypto assets at fair value in accordance with Topic 820, Fair Value Measurement. Do you agree with that proposed requirement? Please explain why or why not.

Crypto-assets can be difficult to value, and the valuation exercise can raise issues that are not present when valuing equity. This difficulty can be driven by both the individual characteristics of the crypto-assets being valued and underlying market characteristics. Both of these factors can make value determinations about certain crypto- assets highly subjective and detract from decision usefulness.

First, crypto-assets often lack the liquidity to make the fair market trading value a reliable means of determining the fair market value of a large position in the assets. Crypto-assets are often traded—particularly early in their existence—in highly volatile and thinly capitalized markets. It can be near-impossible to value such assets, even if there has been a small amount of public trading. The existence of such markets can make a “market price” highly unreliable in a way that is uncommon with equities. Under the Proposed Update, which looks to Topic 820, Fair Value Measurement, the market price of the tokens (even if the trading value is clearly not reflective of the actual value) dictates the fair market value. Thus, such valuation parameters must be taken into account to provide decision- useful information with respect to crypto assets.

Second, restrictions on tokens are more common – and different – than restrictions on stock. In particular, many tokens contain restrictions that are inherent to the token itself. These are distinct from restrictions entered voluntarily (e.g., a lockup because a holder has staked a token). Further, these restrictions are often programmatic. A token subject to a programmatic lockup cannot be transferred on-chain, and that restriction is embedded into the token itself and is inseverable from any property right in the token. Thus, programmatic restrictions are intrinsic to the tokens themselves. (As used herein, “locked” tokens with programmatic restrictions on trading are an example of such an asset.) These locked crypto-assets can differ materially in kind from “unlocked” tokens that can be traded on chain. The public trading price of an unlocked token often can have only a remote (or even no) bearing on the value of its locked cousin, particularly where the lockup is many years (as is common in the crypto-asset space).

Third, many crypto-assets are held in large blocks by single entities that do not intend to dispose of their large blocks. Further, any immediate attempt by an entity to dispose of its block is likely to put material downward pressure on the per-token price.

Examples show how these issues create difficulties when it comes to valuation matters. Consider the following example:

  • Entity A owns 40 percent of the total market supply of token Y. Entity A did not issue or create any of token Y. Entity A’s tokens are subject to a programmatic lockup, where they are not able to be sold for 4 years. There is a market in token Y, where the tokens are currently being sold for $1.00 per token, with significant volatility.

Furthermore, the Fair Value Measurement rules do not allow entities to account for a liquidity discount where an entity holds a material share of the total supply of a token, as the following example demonstrates.

  • Entity B owns 30 percent of the market supply of token X, a native DLT token. Entity B did not issue or create any of token X. All of these tokens are subject to a one-year programmatic lockup – that is, the tokens cannot be transferred on-chain to any other party for a period of time. In fact, 99.5 percent of all of token X are subject to a programmatic, on-chain lockup, all for at least one year (and some for significantly longer). Token X is traded in very small amounts on a single exchange, in a single day of trading, establishing a significant value for the tokens given the limited supply. No other trades occur.

Should the token’s value in the hands of Entity B be limited to that highly inflated trading price? Would that high valuation accurately reflect the holdings of Entity B and provide its investors with decision-useful information? It would not. Thin markets create inflated values, and that market trading price in no way accurately reflects Entity B’s holdings. To record the holdings with that value on Entity B’s financial statements would not accurately portray Entity B’s holdings.

Question 16: Would the proposed requirement to subsequently measure crypto assets at fair value and the accompanying disclosures benefit investors by providing them with more decision-useful information? If so, how would that information influence investment and capital allocation decisions? If not, please explain why.

Should the token’s value in the hands of Entity B be limited to that highly inflated trading price? Would that high valuation accurately reflect the holdings of Entity B and provide its investors with decision-useful information? It would not. Thin markets create inflated values, and that market trading price in no way accurately reflects Entity B’s holdings. To record the holdings with that value on Entity B’s financial statements would not accurately portray Entity B’s holdings.

This alternate regime should be elective. This alternative reporting regime should be allowed either (1) for any entity that holds a significant number of tokens of a particular type—we would suggest more than 5 percent of the outstanding number of tokens of a particular type; (2) for any thinly traded tokens—e.g., under $5 million of average daily trading volume; or (3) for any tokens that differ materially (e.g., are subject to a lockup restriction) from the ‘same’ token’s counterparts that are publicly traded.

Entities holding tokens under this alternate regime would, instead of being required to value such tokens, be required to provide information that we believe is more decision-useful than a highly subjective valuation. Such information could include trading price, trading volume, description of lock-up restrictions, the total number of tokens held of that particular type, and total number of tokens on the market, and total number of tokens in existence.

The goal of allowing for this disclosure regime is to make sure that the information included in financial statements is thorough and decision-useful to investors. We believe that investors would benefit if the fair value measurement regime of the Proposed Update permitted the entities, we discuss above to elect to provide specific and objective information about their crypto asset holdings in lieu of a subjective valuation.

A Sensible Disclosure Regime.

In light of the above, we propose certain modifications to the Proposed Update that we believe would promote the reporting of decision-useful information regarding crypto-asset holdings. In particular, we suggest that an entity ought to be allowed to alternatively report certain information about its crypto-asset holdings under the current model based on cost, but also to include a substantive disclosure in its financial statements that includes decision-useful information.

Sincerely yours,

Chris Lavery

Chief Financial Officer

Ava Labs, Inc.

References

  1. See Lee A. Schneider, Chambers Global Practice Guides, Fintech 2022 – Introduction, at 4-8. Available here

  2. See Lee A. Schneider, Chambers Global Practice Guides, Fintech 2022 – Introduction, at 7.

  3. See Kappos, et al. FUZZY TOKENS: THINKING CAREFULLY ABOUT TECHNICAL CLASSIFICATION VERSUS LEGAL CLASSIFICATION OF CRYPTOASSETS, Berkley Tech L. J. Commentaries (Mar. 1, 2023)

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Comment letters

Public Comment on Tokenization: Overview and Financial Stability Implications
Comment letter
2023-11-14

Public Comment on Tokenization: Overview and Financial Stability Implications

To whom it may concern: Owl Explains appreciates the opportunity to comment on the Staff working paper under the Finance and Economics Discussion Series entitled 'Tokenization: Overview and Financial Stability Implications' ISSN 1967-2854; ISSN 2767-3898 (the Tokenization Paper'). Owl Explains is a project led by the legal team at Ava Labs, Inc. that aims to support workable regulation of blockchain and cryptoassets (also called 'tokens') through a set of guiding principles known as the Tree of Web3 Wisdom — and a system for determining the legal and regulatory treatment of cryptoassets according to their true nature (functions and features) known as the sensible token classification system. More information about the initiative appears at the end of this letter. The Tokenization Paper is an important step towards a fuller understanding of the possibilities associated with blockchains and tokenization of assets. Most importantly from our perspective, the Tokenization Paper clearly recognizes that tokenized assets can be categorized in various ways: off-chain vs. on-chain, tangible vs. intangible, etc. Off-chain reference assets can be physical (e.g. real estate and commodities) or intangible (e.g. intellectual property rights and traditional financial securities like stocks and bonds) and exist outside of the crypto-asset ecosystem. Tokenizations with physical/off-chain reference assets generally involve an off-chain agent, such as a bank, to assess the value of the reference asset and provide custodial services. Tokenizations that reference other on-chain crypto-assets can incorporate smart contracts to provide custody and valuation assessments. (footnotes omitted) This concept of tokenization is a core benefit of blockchain technology that has gone largely unrecognized until very recently. The Tokenization Paper focuses on one aspect of tokenization by defining it somewhat narrowly to include only 'process of linking reference assets to crypto tokens via design features that link the token’s price to the value of the token’s reference asset.' We encourage the authors, and indeed everyone, to think of tokenization more expansively, in accordance with its true potential. We make the following points to describe tokenization: Cryptoassets (tokens) are not all the same. They are not a homogenous asset class. This is true because tokens are digital representations of assets, items, and things and therefore can represent anything. Accordingly, tokens cannot be treated all the same under law and regulation, and many types of tokens are not financial instruments. Many tokens represent assets, items, or things that are already regulated so do not require new regulation. Many other tokens represent items that are not regulated in the non-blockchain world because they do not require it and so should not be regulated simply because they are tokenized on a blockchain. In just the last year, we have made these points in response to reports or guidance from the Internal Revenue Service (here and here), the Financial Accounting Standards Board (here and here), the Government Accounting Office (here), the International Organization of Securities Commissions (here), and joint work by International Monetary Fund and Financial Stability Board (here). Commissioner Mersinger of the Commodity Futures Trading Commission ('CFTC') is a fan of sensible token classification, which makes sense because the CFTC was one of the earliest regulators to recognize it in LabCFTC’s Digital Asset Primer. We also made these points in response to a recent report from the National Institute of Standards and Technology, which, although it focused on nonfungible tokens, made the following statement that applies to fungible tokens as well: '[NFT] technology provides a mechanism to enable real assets (both virtual and physical) to be sold and exchanged on a blockchain. It does this by creating a unique blockchain token to represent each asset.' This core insight, we believe, is too often overlooked by policymakers and regulators around the globe. We call this insight 'sensible token classification,' which we discuss in more detail below. We applaud NIST for being at the forefront of understanding the technology. Here is more of how we articulate these points: Blockchain is a new technology, but in essence it is simply a new kind of database or filing cabinet. When it comes to law and regulation, treating all cryptoassets the same simply because they are tokenized representations recorded on a blockchain makes as little sense as treating a sketch, an ID card, a receipt or a share certificate all the same because they are printed on paper and filed in the same filing cabinet. Instead, policymakers and regulators should treat each token according to what it actually represents - just as they do with things written on paper. By looking at a cryptoasset’s functions and features, we can determine its utilization, valuation, and classification (including for legal/regulatory purposes). Using the paper analogy, consider a paper deed of title to a home. It is the evidence of ownership of the asset, so it represents the bundle of rights that is ownership of the home. The Tokenization Paper would easily accommodate the idea of replacing the paper title with a token under its 'off-chain' asset analysis. Now consider the paper tickets to the Taylor Swift concert, which give the right to attend the concert and sit in the assigned seats. That is the bundle of rights received from owning the paper tickets. The Tokenization Paper should acknowledge that replacing the paper tickets with a token would be an easy substitute and obviate the need for a “reference asset” because the token embodies the bundle of rights. A final example specific to financial instruments: shares of stock used to be represented with paper certificates. Holding a paper share certificate denominating ownership of 100 shares of Corporation X is possession of the bundle of rights associated with that stock. Again, the Tokenization Paper should recognize that replacing the paper stock certificate with a token would be an easy substitute and one without need of a reference asset. Bitcoin, ether, avax and other similar native DLT tokens (see below) also represent bundles of rights; in this case rights to use and otherwise participate in a blockchain network. Sure you could do it with paper, but blockchain obviates the need through tokenization of the bundle of rights and making it usable directly on the blockchain. The good news is that the majority of tokens represent things that already existed before blockchain (land, concert tickets, stock, etc.) and can be treated as legal or illegal, regulated or unregulated just as they always have been. Policymakers should simply scrutinize what the token actually represents - its features, functions and risk profile - and apply existing laws and regulations - or not - accordingly. This way regulation stays consistent across different technologies - same asset, equals same risk, which results in the same legal and regulatory treatment. We believe the Tokenization Paper agrees with this point. The Owl Explains sensible token classification system breaks tokens down into the following five high level categories that represent the vast majority of use cases today and into the future: Physical asset tokens:   Any digital representation of a tangible (real-world) asset created and maintained on a blockchain (also known as 'DLT' for distributed ledger technology). This category is very broad and could be divided into smaller categories based on the particular type of tangible asset (e.g., gold coin physical asset tokens, Air Jordan physical asset tokens, cup of coffee physical asset tokens versus coffee cup physical tokens, etc.). Services tokens (includes music, digital art);   Any digital representation of services to be provided by one or more persons/entities to other person(s)/entities. This category also includes music and purely digital art files (the intellectual property underlying the music or digital art file may be an intangible asset token, discussed next, if not transferred with the file). This category is also quite broad because it includes any type of services and digital art/music such that it is susceptible to sub-categorization (e.g., cleaning services tokens, personal performance tokens versus concert ticket tokens, legal services tokens, etc.). Intangible asset tokens:   Any traditional intangible (non-physical) asset. Another broad category susceptible to sub-categories based on the asset class (bond tokens [security tokens], intellectual property rights tokens, government program tokens, loyalty points program tokens, etc.). Native DLT tokens:   A narrow category of truly DLT-native tokens (e.g., Bitcoin, Ether, AVAX, etc.). Might be a subset of intangible asset tokens in the sense that these tokens are just a bundle of rights with no physical item involved, although some may have an element of services (e.g., when the token is used for resource allocation on the network). The classification system treats native DLT tokens as not a subset of intangible asset tokens because the latter must be something that exists (or can exist) distinct from the blockchain that creates and maintains it. Native DLT tokens have no existence or purpose without the associated blockchain. This paper by Professor Carla Reyes is instructive. Stablecoins:   A narrow category of tokens that do not fall within any other category and are designed to maintain stable value against some underlying, reference or linked asset or pool/basket of assets. Usually applied to fiat currencies. This category should not be broadened to swallow all the other categories. We understand that the bundle of rights will differ depending on how the tokenization is implemented, such that, contrary to the tickets, stock and native DLT token example above, in some instances there is a reference asset. Indeed, it might be the case that no ownership over the reference asset is given in the bundle of rights. One way to conceptualize this point is that a person might say that they “bought a token” thinking that they bought an asset. That may or may not be true, depending on the token because the token may or may not convey to the purchaser any legal rights over the assets, even though it has given the buyer some bundle of rights. Accordingly, it is always important to understand the bundle of rights that has been tokenized. About Owl Explains Owl Explains is a project created by the Legal team at Ava Labs with the goal of becoming a trusted educational resource for policymakers, regulators, and other parties interested in learning about blockchain technology, cryptoassets, and Web3. Owl Explains develops content delivered by leading industry experts, including podcasts, explainers, articles, and quizzes, focusing on understanding the technology and the full breadth of its use cases, distinguishing where those use cases fit within existing regulatory frameworks, as well as defining principles for regulation based on the nature of the asset and activity. Innovation is the soil from which we can create a better Internet. Blockchain is its root system: decentralized, transparent, secure, and traceable. We believe that workable regulation in conjunction with innovation and invention is the best way to guide the transformative power of Web3 to empower individuals and businesses, drive economic inclusion, and benefit the planet. As such, the Owl has developed the Tree of Web3 Wisdom, a set of principles to help guide blockchain and crypto regulation worldwide. Conclusion We urge all policymakers and regulators to read the Tokenization Paper and adopt the principles of the sensible token classification system as part of their work on crypto and digital assets. Treating all tokens the same, particularly as more and more traditional assets are tokenized, is not workable because it is neither technology neutral nor efficient. We would be happy to discuss further. Lee A. Schneider General Counsel Ava Labs, Inc.

Public Comment on NIST IR 8472 ipd 'Non-Fungible Token Security'
Comment letter
2023-10-31

Public Comment on NIST IR 8472 ipd 'Non-Fungible Token Security'

To whom it may concern: Owl Explains appreciates the opportunity to comment on NIST IR 8472 ipd 'Non-Fungible Token Security' (the 'NFT Report'). The NFT Report is an important step towards systematic security approaches to promote secure design and implementation of NFT creation, implementation and transacting. More importantly from our perspective, the NFT Report clearly recognizes that '[NFT] technology provides a mechanism to enable real assets (both virtual and physical) to be sold and exchanged on a blockchain. It does this by creating a unique blockchain token to represent each asset.' This core insight, we believe, is too often overlooked by policymakers and regulators around the globe. We call this insight 'sensible token classification,' which we discuss in more detail below. We applaud NIST for being, as usual, at the forefront of understanding technology and hope that the NFT Report will receive a great deal of publicity on this basis alone. Owl Explains is a project led by the legal team at Ava Labs, Inc. that aims to support workable regulation of blockchain and cryptoassets (also called 'tokens') through a set of guiding principles known as the Tree of Web3 Wisdom — and a system for determining the legal and regulatory treatment of cryptoassets according to their true nature (functions and features) known as the sensible token classification system. More information about the initiative appears at the end of this letter. We are heartened to see an agency as respected and renowned as NIST acknowledge the core of what blockchain and tokenization does. At Owl Explains, we make the following points to describe tokenization: Cryptoassets (tokens) are not all the same. They are not a homogenous asset class. This is true because tokens are digital representations of assets, items, and things and therefore can represent anything. Accordingly, tokens cannot be treated all the same under law and regulation, and many types of tokens are not financial instruments. Many tokens represent assets, items, or things that are already regulated so do not require new regulation. Many other tokens represent items that are not regulated in the non-blockchain world because they do not require it and so should not be regulated simply because they are tokenized on a blockchain. In just the last year, we have made these points in response to reports or guidance from the Internal Revenue Service (here and here), the Financial Accounting Standards Board (here and here), the Government Accounting Office (here), the International Organization of Securities Commissions (here), and joint work by International Monetary Fund and Financial Stability Board (here). Commissioner Mersinger of the Commodity Futures Trading Commission ('CFTC') is a fan of sensible token classification, which makes sense because the CFTC was one of the earliest regulators to recognize it in LabCFTC’s Digital Asset Primer. Here is more of how we articulate these points: Blockchain is a new technology, but in essence it is simply a new kind of database or filing cabinet. When it comes to law and regulation, treating all cryptoassets the same simply because they are tokenized representations recorded on a blockchain makes as little sense as treating a sketch, an ID card, a receipt or a share certificate all the same because they are printed on paper and filed in the same filing cabinet. Instead, policymakers and regulators should treat each token according to what it actually represents - just as they do with things written on paper. By looking at a cryptoassets functions and features, we can determine its utilization, valuation, and classification (including for legal/regulatory purposes). The good news is that the majority of tokens represent things that already existed before blockchain and can be treated as legal or illegal, regulated or unregulated just as they always have been. Policymakers should simply scrutinize what the token actually represents - its features, functions and risk profile - and apply existing laws and regulations - or not - accordingly. This way regulation stays consistent across different technologies - same asset, equals same risk, which results in the same legal and regulatory treatment. The Owl Explains sensible token classification system breaks tokens down into the following five high level categories that represent the vast majority of use cases today and into the future: Physical asset tokens:   Any digital representation of a tangible (real-world) asset created and maintained on a blockchain (also known as 'DLT' for distributed ledger technology). This category is very broad and could be divided into smaller categories based on the particular type of tangible asset (e.g., gold coin physical asset tokens, Air Jordan physical asset tokens, cup of coffee physical asset tokens versus coffee cup physical tokens, etc.). Services tokens (includes music, digital art);   Any digital representation of services to be provided by one or more persons/entities to other person(s)/entities. This category also includes music and purely digital art files (the intellectual property underlying the music or digital art file may be an intangible asset token, discussed next, if not transferred with the file). This category is also quite broad because it includes any type of services and digital art/music such that it is susceptible to sub-categorization (e.g., cleaning services tokens, personal performance tokens versus concert ticket tokens, legal services tokens, etc.). Intangible asset tokens:   Any traditional intangible (non-physical) asset. Another broad category susceptible to sub-categories based on the asset class (bond tokens [security tokens], intellectual property rights tokens, government program tokens, loyalty points program tokens, etc.). Native DLT tokens:   A narrow category of truly DLT-native tokens (e.g., Bitcoin, Ether, AVAX, etc.). Might be a subset of intangible asset tokens in the sense that these tokens are just a bundle of rights with no physical item involved, although some may have an element of services (e.g., when the token is used for resource allocation on the network). The classification system treats native DLT tokens as not a subset of intangible asset tokens because the latter must be something that exists (or can exist) distinct from the blockchain that creates and maintains it. Native DLT tokens have no existence or purpose without the associated blockchain. This paper by Professor Carla Reyes is instructive. Stablecoins:   A narrow category of tokens that do not fall within any other category and are designed to maintain stable value against some underlying, reference or linked asset or pool/basket of assets. Usually applied to fiat currencies. This category should not be broadened to swallow all the other categories. You can understand why we are so encouraged by the NFT Report and NIST’s understanding of tokenization. We hope all policymakers and regulators start their activities with reference to the fundamental principles in the NFT Report and the sensible token classification system as a way to orient their efforts. About Owl Explains Owl Explains is a project created by the Legal team at Ava Labs with the goal of becoming a trusted educational resource for policymakers, regulators, and other parties interested in learning about blockchain technology, cryptoassets, and Web3. Owl Explains develops content delivered by leading industry experts, including podcasts, explainers, articles, and quizzes, focusing on understanding the technology and the full breadth of its use cases, distinguishing where those use cases fit within existing regulatory frameworks, as well as defining principles for regulation based on the nature of the asset and activity. Innovation is the soil from which we can create a better Internet. Blockchain is its root system: decentralized, transparent, secure, and traceable. We believe that workable regulation in conjunction with innovation and invention is the best way to guide the transformative power of Web3 to empower individuals and businesses, drive economic inclusion, and benefit the planet. As such, the Owl has developed the Tree of Web3 Wisdom, a set of principles to help guide blockchain and crypto regulation worldwide. Conclusion We urge all policymakers and regulators to read the NFT Report and adopt the principles of the sensible token classification system as part of their work on crypto and digital assets. Treating all tokens the same, particularly as more and more traditional assets are tokenized, is not workable because it is neither technology neutral nor efficient. We would be happy to discuss further. Lee A. Schneider General Counsel Ava Labs, Inc.

Comment on IMF-FSB Synthesis Paper: 'Policies for Crypto-Assets'
Comment letter
2023-10-30

Comment on IMF-FSB Synthesis Paper: 'Policies for Crypto-Assets'

To whom it may concern: Owl Explains appreciates the opportunity to comment on the recent paper entitled “IMF-FSB Synthesis Paper: Policies for Crypto-Assets” (the “Joint Paper”). The Joint Paper brings together in one place work that both organizations have undertaken regarding crypto-assets, including findings from IMF work on macroeconomic and monetary issues and FSB work on financial stability. Owl Explains is a project led by the legal team at Ava Labs, Inc. that aims to support workable regulation of blockchain and crypto-assets (also called “tokens”) through a set of guiding principles known as the Tree of Web3 Wisdom— and a system for determining the legal and regulatory treatment of crypto-assets according to their true nature (functions and features) known as the sensible token classification system. More information about the initiative appears at the end of this letter. The Joint Paper’s stated goal was to combine recommendations concerning macroeconomic and monetary issues and recommendations related to financial stability into a single, comprehensive set of policy considerations. The paper outlines key regulatory challenges and highlights the need for “[a] comprehensive policy and regulatory response for crypto-assets . . ..” We agree with the overall theme of implementing workable regulations that focus on the areas of macroeconomic and monetary policy and financial stability. We also applaud the goals of market integrity and investor protection through global coordination, as reflected in our article here. We believe, however, that the Joint Paper and its associated recommendations would benefit from greater acknowledgement of and discussion about the following core points about blockchain and tokenization: Crypto-assets (tokens) are not all the same. They are not a homogenous asset class. This is true because tokens are digital representations of assets, items and things and therefore can represent anything. Accordingly, tokens cannot all be treated the same under law and regulation, or for macroprudential and financial stability purposes. Many tokens represent assets, items or things that are already subject to the standards and recommendations of the Joint Paper, and are regulated accordingly. Many other tokens represent items that are not regulated in the non-blockchain world because they do not require it and so should not be regulated simply because they are tokenized on a blockchain. Accordingly, broad definitions of crypto-assets such as the one in the Joint Paper may result in more confusion than clarity. Blockchain is a new technology, but in essence it is simply a new kind of database or filing cabinet. When it comes to law and regulation, treating all crypto-assets the same simply because they are tokenized representations recorded on a blockchain makes as little sense as treating a sketch, an ID card, a receipt or a share certificate all the same because they are printed on paper and filed in the same filing cabinet. Instead, policymakers and regulators should treat each token according to what it actually represents - just as they do with things written on paper. By looking at a crypto-assets functions and features, we can determine its utilization, valuation, and classification (including for legal/regulatory purposes). The good news is that the majority of tokens represent things that already existed before blockchain and can be treated as legal or illegal, regulated or unregulated just as they always have been. Policymakers should simply scrutinize what the token actually represents - its features, functions and risk profile - and apply existing laws and regulations - or not - accordingly. This way regulation stays consistent across different technologies - same asset, equals same risk, which results in the same legal and regulatory treatment. The same is true in the context of macreconomic, monetary, or financial stability policy. The Owl Explains sensible token classification system breaks tokens down into the following five high level categories that represent the vast majority of use cases today and into the future: Physical asset tokens:   Any digital representation of a tangible (real-world) asset created and maintained on a blockchain (also known as “DLT” for distributed ledger technology). This category is very broad and could be divided into smaller categories based on the particular type of tangible asset (e.g., gold coin physical asset tokens, Air Jordan physical asset tokens, cup of coffee physical asset tokens versus coffee cup physical tokens, etc.). Services tokens (includes music, digital art);   Any digital representation of services to be provided by one or more persons/entities to other person(s)/entities. This category also includes music and purely digital art files (the intellectual property underlying the music or digital art file may be an intangible asset token, discussed next, if not transferred with the file). This category is also quite broad because it includes any type of services and digital art/music such that it is susceptible to sub-categorization (e.g., cleaning services tokens, personal performance tokens versus concert ticket tokens, legal services tokens, etc.). Intangible asset tokens:   Any traditional intangible (non-physical) asset. Another broad category susceptible to sub-categories based on the asset class (bond tokens [security tokens], intellectual property rights tokens, government program tokens, loyalty points program tokens, etc.). Native DLT tokens:   A narrow category of truly DLT-native tokens (e.g., Bitcoin, Ether, AVAX, etc.). Might be a subset of intangible asset tokens in the sense that these tokens are just a bundle of rights with no physical item involved, although some may have an element of services (e.g., when the token is used for resource allocation on the network). The classification system treats native DLT tokens as not a subset of intangible asset tokens because the latter must be something that exists (or can exist) distinct from the blockchain that creates and maintains it. Native DLT tokens have no existence or purpose without the associated blockchain. This paper by Professor Carla Reyes is instructive. Stablecoins:   A narrow category of tokens that do not fall within any other category and are designed to maintain stable value against some underlying, reference or linked asset or pool/basket of assets. Usually applied to fiat currencies. This category should not be broadened to swallow all the other categories. Classifying tokens according to this system will be a crucial first step in the implementation of IMF-FSB’s recommendations because it will make clear when assets and activities provide true cause of concern from the standpoint of macroeconomic, monetary, or financial stability policy. We therefore encourage IMF-FSB and all policymakers and regulators to start their activities with reference to the fundamental principles in the sensible token classification system and use its broad categories to orient their efforts. About Owl Explains Owl Explains is a project created by the Legal team at Ava Labs with the goal of becoming a trusted educational resource for policymakers, regulators, and other parties interested in learning about blockchain technology, cryptoassets, and Web3. Owl Explains develops content delivered by leading industry experts, including podcasts, explainers, articles, and quizzes, focusing on understanding the technology and the full breadth of its use cases, distinguishing where those use cases fit within existing regulatory frameworks, as well as defining principles for regulation based on the nature of the asset and activity. Innovation is the soil from which we can create a better Internet. Blockchain is its root system: decentralized, transparent, secure, and traceable. We believe that workable regulation in conjunction with innovation and invention is the best way to guide the transformative power of Web3 to empower individuals and businesses, drive economic inclusion, and benefit the planet. As such, the Owl has developed the Tree of Web3 Wisdom, a set of principles to help guide blockchain and crypto regulation worldwide. Conclusion We urge IMF-FSB to adopt the principles of the sensible token classification system as part of its work on crypto and digital assets. Treating all tokens the same, particularly as more and more traditional assets are tokenized, is not workable because it is neither technology neutral nor efficient. We would be happy to discuss further. Lee A. Schneider General Counsel Ava Labs, Inc.