In general, I agree with you that the issuers of the tokens are responsible for complying with the securities laws. There is a four part test under the Howey case decided by the U.S. Supreme Court that determines whether something is a security.
The test requires the following:
- An investment of money.
- An expectation of profits from the investment.
- The investment of money is in a common enterprise.
- Any profit comes from the efforts of a third party, such as the managers of the enterprise.
It shouldn't be difficult for the issuers of tokens to structure the tokens to avoid the application of the securities laws.
For the most part I agree with you that the service providers will not get into trouble under the securities laws, but where they may have some exposure is if they accept tokens in consideration for their services and those tokens are deemed to be securities. In that case, the service providers might need to register as broker-dealers under the securities laws to avoid liability, because if the providers are acquiring securities that they are then able to sell for their own account, they could be deemed to be broker-dealers. One way to avoid that would be for the providers to simply require payment in cash rather than accepting tokens as consideration for their services.
I'm sure block.one will review that issue carefully with its attorneys to avoid problems.
Would block producers be exposed by using tokens like an incubated fund?
Almost accurate but it must be solely on effort of a party who must be contractually liable to provide value to token holders.