The short answer is that the Howey test is too broad, and the fifth element of the  test is whether the SEC wants to regulate the market. Brian Frye covers this well here:

The short answer is that the Howey test is too broad, and the fifth element of the  test is whether the SEC wants to regulate the market. Brian Frye covers this well here: 

https://www.rightclicksave.com/article/why-i-sued-the-sec-law-regulate-art-nft

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