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William & Mary Business Law Review

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Non-Fungible Tokens, or "NFTs," ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters--and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency--the technology enabling the life of an NFT--remains beset with, at best, theoretical models for effective regulation a full generation after its emergence. To propose a rational start to NFT regulation, the author--a former regulator--tackles the basics: NFT design, "minting," opening for purchase and trading, and ultimate repose in the digital wallets of purchasers. Specific legal ills occasioned by each step of the process are described. In turn, the apparent choices for NFT regulator are examined. To be sure, the eager lethargy exhibited by investment regulators confronting virtual currencies has proven rule adoption to be a quixotic dream. Thus, the author suggests that the storied FTC, the agency with the heart and the mission, be chosen as the force to slow market consolidation and counter anti-competitive practices cementing in the country's vastest NFT marketplaces. Such remedy (enabled by the FTC's revision of its antitrust mission late last year) would temper the rampant loosing of NFTs on all unbridled marketplaces until more ill ramifications can be catalogued and comprehended. Further, the proposed resolution of "trust-busting type" oversight is not only amply supported by the recent FTC successes but also greatly aligned with the idyllic hopes of the budding "WEB 3.0" world. Namely, if the latest incarnation of interactive cyberspace is to truly "shatter the monopolies on who controls information", the first step is to ensure that the interrupter itself is not a monopoly.

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