Legal Issues in Blockchain, Cryptocurrency, and NFTs

Abstract

When do new technologies require their own law? Judge Easterbrook argued in 1996 that there is no more need for a “Law of Cyberspace” than there ever was for a “Law of the Horse.” Rather, existing laws spanning multiple fields often are sufficient to cover niche factual applications and even new technological change. The same is true now of “The Law of Blockchain.” Nonetheless, blockchain marketplace participants lack any cohesive analysis to turn to that is neutral as to outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a “Law of Blockchain,” yet this article hopes to shed light on the wide scope of existing laws that apply to this new technological era.

Assets on the blockchain have ballooned to billions of dollars, stored everywhere from Bitcoin and Ethereum, to Bored Ape Yacht Club and Lazy Lion NFTs, to new coins, decentralized finance, and play-to-earn gaming, with booms and busts happening frequently. Yet regulators are only just catching up to the complexities of “Web 3.0” and, for many, it can feel like a Wild West. Prospectors, shills, and fraudsters abound, as do innovative companies and community projects. This article hopes to shed light on the emerging legal questions that Web 3.0 founders, creators, and lawmakers should watch and cases that inform them. These issues include securities laws, intellectual property, right of publicity, advertising, and more.

This Article can present only one snapshot in time, and indeed the application of existing laws to blockchain and other new technologies will be clarified further by the time this is published. Nonetheless, this Article will hopefully provide a useful framework of how to approach new technology that relies on sound principles of decades-old legal schemes, not the pursuit of a “Law of Blockchain.” New applications of old law can shift and define its edges, but adherence to first principles often clarifies what can seem like an uncertain legal landscape.

Keywords: blockchain, Web3, Web3.0, cryptocurrency, NFTs, DAOs, decentralized organizations, securities, intellectual property, patents, trademarks, trade secrets, copyright, right of publicity, jurisdiction, proof of stake, technology law, AI, generative art