The issue isn't whether you can hypothetically contribute to the potential security's value but rather is whether the success of the venture depends primarily on the efforts of others. There's a lot of grey area between being a regular Joe small shareholder in a massive publicly traded corporation (no participation) and being the sole owner and manager of a closely held corporation (clear participation). Its worth noting that commodity market fluctuations don't count as the efforts of others (e.g. Noa v. Key Futures where silver certificates weren't considered a security even when sold by an investment firm which marketing the certificates as investments).
There's a trend in the modern interpretation of Howey toward something called the "risk capital test," which states that a scheme which raises capital to finance a venture should be considered a security. I'm not sure Ether meets that test and it's a minority rule anyway but modern Howey jurisprudence is quite flexible because scam artists tend to be extremely inventive in getting around the Securities Act.
Ultimately the decisive factor in court is likely to be the unfortunately vague but essential standard "Do the investors in the scheme require the protection of the Securities Act of 1933?" The lack of a comparable regulatory system to protect the public against Ether scams counts against exclusion from the Securities Act. Otherwise, I personally think the case for Howey is weak here, but that's because the case law hasn't caught up to the tech yet. So we can't predict how a federal court might decide because they very well may revise the existing standards.
There's a trend in the modern interpretation of Howey toward something called the "risk capital test," which states that a scheme which raises capital to finance a venture should be considered a security. I'm not sure Ether meets that test and it's a minority rule anyway but modern Howey jurisprudence is quite flexible because scam artists tend to be extremely inventive in getting around the Securities Act.
Ultimately the decisive factor in court is likely to be the unfortunately vague but essential standard "Do the investors in the scheme require the protection of the Securities Act of 1933?" The lack of a comparable regulatory system to protect the public against Ether scams counts against exclusion from the Securities Act. Otherwise, I personally think the case for Howey is weak here, but that's because the case law hasn't caught up to the tech yet. So we can't predict how a federal court might decide because they very well may revise the existing standards.