> "Primarily driven by commercial usage". Can anyone name an ICO token for which that is really the case?

The value of the token can't come primarily from the person or entity promoting the token sale, but whether there is commercial usage or not is largely orthogonal to whether or not something is a security.

WSGR disagrees. And where are you finding 70 years of settled law on securities that later become primarily valued via use in commercial transactions?

> Our current view is that once the value of the tokens is primarily driven by their commercial usage, rather than by the efforts of the token sponsor or other developers, the tokens should no longer be deemed to be securities. The SEC has not yet addressed this question.

The Howey Test, from 1946, is about whether assets that are classified as real estate, currencies, 'utility tokens', etc., can also be classified as securities.

http://consumer.findlaw.com/securities-law/what-is-the-howey...

The entire point is that you can't get out of going to prison by saying "Our thing is X, therefore it can't also be Y."

Yes and where's an example of a onetime security which was later considered not-a-security?

From your own link:

> The final factor of the Howey Test concerns whether any profit that comes from the investment is largely or wholly outside of the investor's control. If so, then the investment might be a security. If, however, the investor's own actions largely dictate whether an investment will be profitable, then that investment is probably not a security.

WSGR's position: once tokens are used primarily for commerce, the value will be determined by commercial usage and not by the offerors, so that:

> Tokens that are solely utility tokens should not be securities. If a token-based platform is fully developed and the tokens are widely used commercially on that platform, the tokens generally should not be securities.

> WSGR is claiming that once tokens are used primarily for commerce, the value will be determined by commercial usage

And they're wrong. If a token is primarily used for commerce then it's value might come primarily from that usage, or it might not. But it certainly isn't some sort of get-out-of-jail-free card.

I don't see how you're disagreeing with WSGR here. You seem to be saying that even after a token becomes broadly useful in its intended setting (say, storing files), it might still get most of its economic value from speculation. WSGR agrees, and seems to go out of its way to say that coins would likely remain securities under those conditions.