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Based on the Howey test it seems like it could be argued that a REP token hits all these indicators.

It is an investment of money?
Yes, clearly.

There is an expectation of profits from the investment?
Yes the REP token is one of the few tokens which should generate income.

The investment of money is in a common enterprise?
Yes, I think its fair to call the Augur network or even any individual market within it a "common enterprise".

Does the potential profit come from the efforts of a promoter or third party?
Potentially yes as the REP holders cannot earn a profit without the efforts of the market creators.

I'd love to hear other interpretations.

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Does the potential profit come from the efforts of a promoter or third party? Potentially yes as the REP holders cannot earn a profit without the efforts of the market creators.

I believe this is where it fails. REP holders only make money if they report on markets. As an incentive for reporting on markets, REP holders are paid for their trouble and for the security the provide to the system. Someone who just buys REP and sits around doing nothing will earn no fees.

By buying REP you are not only locking up an asset as part of participation in a crypto-economic security system (which the Howey Test and SEC don't really understand, so who knows how they will view it) but you are also effectively registering to participate in the reporting system (which is how you get fees).

Of course, the SEC and US Judicial system aren't exactly known for their reasonableness, so who knows.

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