The difference is that players were not investors, they were depositors.
When you invest money in a company, you do so with the understanding that the money becomes the company's and will be spent. In return, you get equity (typically). You don't have an "account" with the company from which you can make withdrawals.
By contrast, poker sites operate like banks, taking deposits from people with the understanding that those deposits will be held in trust. You're not buying equity in the poker site, and your money doesn't become their money. It's still your money; it's just being held in an account they manage. This is why commingling is bad--it obliterates the distinction between their money and yours.
Obviously, these poker sites are not FDIC insured like banks. But a legitimate poker site would still take all reasonable precautions (such as segregating the company's funds from depositors') to protect your money.
Another angle is that players might not even legally be considered depositors.
There is a payment processor whose funds were seized where the government even put on a display of the giant check of funds seized. These funds ultimately belonged to players (good or bad). The situation is still unclear, as information is limited, but it appears that players will not be legally entitled to any of the seized funds.
As far as poker sites go, they may also not be considered depositors. Some sites/casinos view it this way: you're buying chips.
Hard to say you are buying chips when you do not receive anything, would be hard to argue that. I dont think regulated operators are allowed to work like this. Aside from the US issues, Fulltilt was actually shut down by the gambling regulator in Alderney, so they were not unregulated.
The largest group is bad players. These players typically deposit money on the site, play until their account is exhausted, and then deposit again. For them, the amount they put on a poker site is not a deposit, but instead an entertainment fee.
There is also a group of professional players on the sites. These players make a deposit (say, an initial $1000), and in the course of playing (better than the bad players) their balance grows. They periodically withdraw small portions of their balance to cover living expenses. Their deposit is an investment in every way. Go hang out on some poker forums and research bankroll management, and you will see a lot of terms that are common in investing.
So who here is making a bank-like deposit? The bad players almost never get their money back, and the good players have far more in their account than they initially invested.
A good site, like PokerStars, will segregate player money and always have it on hand. But in an unregulated market where everyone is relying on the goodwill of the poker sites to manage their funds, there is no guarantee of anything. If a country destroys that goodwill (by seizing funds and issuing indictments), why should we be surprised that the money is no longer available?
Clarification: I don't mean that players have the same legal status as depositors at a bank. The TOS for these sites could say just about anything, and they could characterize your "deposits" any way they want. (I haven't read the TOS, so I don't know if this is actually the case.)
So I'm not saying players were legally depositors. Rather, I mean that ethically and in terms of the players' reasonable expectations, that's what they were.
The whole thing hinges on how fast a players deposit can be converted in to rake. If 14% or less of the deposits ever made ends up being paid out then they're actually still in the black.
It would require some insider knowledge to know how much the cumulative rake is in an online poker game, I wouldn't be surprised if the majority of the players played until they ran out of money rather than withdraw. A few really good players would probably take money off the table but those would be the exception rather than the rule.
In a sense, depositing money in a bank is a sort of loan to the bank. They then loan your money out to others, and give you a cut of the interest. It isn't really "held in an account," rather there is a register which says how much money you loaned to them.
True, but it's very different than an investment. They're holding your money in trust. And significantly, no purchase has taken place. You haven't traded your money for equity. You haven't traded your money for anything at all. Thus, it is still your money legally. That's not at all true when you buy equity in a company. When you do that, the company really does own the money you give them, and they're free to do what they want with it. In exchange for transferring ownership of your money, you get equity.
When you invest money in a company, you do so with the understanding that the money becomes the company's and will be spent. In return, you get equity (typically). You don't have an "account" with the company from which you can make withdrawals.
By contrast, poker sites operate like banks, taking deposits from people with the understanding that those deposits will be held in trust. You're not buying equity in the poker site, and your money doesn't become their money. It's still your money; it's just being held in an account they manage. This is why commingling is bad--it obliterates the distinction between their money and yours.
Obviously, these poker sites are not FDIC insured like banks. But a legitimate poker site would still take all reasonable precautions (such as segregating the company's funds from depositors') to protect your money.