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.
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.
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."