OpenSea has called on the United States Securities and Exchange Commission to make it official that NFT marketplaces aren’t exchanges or brokers under US securities laws.
“We propose that the SEC clearly state that NFT marketplaces like OpenSea do notqualify as exchanges under federal securities laws,” the non-fungible token marketplace said in a letter to SEC Commissioner Hester Peirce.
OpenSea argues that NFT platforms don’t fit the legal definition of an exchange or broker because they don’t handle transactions, act as intermediaries, or bring together multiple sellers of the same asset.
Most NFTs are unique digital assets, meaning there is typically only one seller for each token. This inherent non-fungibility, OpenSea argues, disqualifies such assets from falling under the regulatory framework designed for fungible securities with multiple sellers.
Additionally, the letter emphasises that all transactions involving NFTs occur directly on the blockchain via smart contracts, independent of the OpenSea platform.
Users maintain custody of their own assets and initiate transactions through their personal wallets. OpenSea merely “allows people to discover NFTs and connect with buyers and sellers,” functioning more as an interface than a financial intermediary.
Given this decentralised structure, OpenSea asserts that traditional regulatory requirements, such as capital maintenance, recordkeeping obligations, and standards of professional conduct, are unnecessary and misaligned with the operational model of NFT marketplaces.
OpenSea can’t be classified as a broker
OpenSea also maintains that it should not be classified as a broker under the Exchange Act, reiterating that it does not provide investment advice, negotiate or execute transactions, custody user assets, or facilitate financing or documentation typically associated with broker activities.
Drawing on legal precedent, the letter cited the SEC v. Coinbase decision, where the court found that merely providing wallet software and access to pricing data did not establish broker status.
OpenSea argued that its own operations are similarly limited, noting that displaying listings or highlighting trending NFTs is not equivalent to offering investment advice or acting as an intermediary.
To remove ongoing uncertainty, OpenSea urged the SEC to issue informal guidance, making it clear that NFT marketplaces are not subject to exchange or broker regulations.
It recommended an interpretive release or a staff bulletin to clarify how Rule 3b-16, which outlines the criteria for what constitutes a securities exchange under federal law, applies to NFT marketplaces, similar to recent statements on memecoins and stablecoins.
“This clarification would offer immediate benefits to NFT collectors, buyers, and sellers, as well as the broader NFT ecosystem, by removing regulatory uncertainty,” it added.
The ambiguity around the security status of NFTs came into sharper focus last year when OpenSea received a Wells notice from the SEC, warning of potential enforcement action.
However, in February 2025, the agency formally closed the investigation without filing charges after returning President Donald Trump directed the SEC to ease crypto enforcement and prioritise regulatory clarity.
