From a legel perspective, are Bitcoins "created" by a miner or the Bitcoin Protocol? The recent FinCEN announcement said explicitly that virtual currency isn't a "currency" by the standard sense of the word, and shouldn't be regarded as such.

Should Bitcoin ever be considered a "currency" I think it would be helpful to know if the coins were created by the miner or created by the protocol.

Miners


Miners claim and distribute brand new coins that have never been used before.
The ability to claim a coin is distributed worldwide and is equally random 


Protocol


The protocol existed before any miner was configured.
The protocol demands that no more than 21 million coins ever exist
The protocol controls the inflation/deflation of the coins through "difficulty"


To me it seems that the "creator" of a Bitcoin is the protocol, and not a miner, and that the term "miner" may not be appropriate.

For most legal purposes, is it ever likely that a "miner" will be considered illegal in any country as if they are "creating" a currency"
The new FinCEN regulations are quite clear that the term &quot;create&quot; includes currencies that people &quot;obtain by their own computing or manufacturing effort&quot;.

A final type of convertible virtual currency activity involves a de-centralized convertible virtual currency (1) that has no central repository and no single administrator, and (2) that persons may obtain by their own computing or manufacturing effort.
A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter.
In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.

And, if by some chance you still think it's ambiguous and perhaps &quot;mining&quot; and &quot;creating&quot; aren't the same thing, it then says this:

How a person engages in &quot;obtaining&quot; a virtual currency may be described using any number of other terms, such as &quot;earning,&quot; &quot;harvesting,&quot; &quot;mining,&quot; &quot;creating,&quot; &quot;auto-generating,&quot; &quot;manufacturing,&quot; or &quot;purchasing,&quot; depending on the details of the specific virtual currency model involved. For purposes of this guidance, the label applied to a particular process of obtaining a virtual currency is not material to the legal characterization under the BSA of the process or of the person engaging in the process.