Adventure Gamers - Forums

Exactly what can you do if it gets cancelled? Not much really, that’s the risk.

I’d be really unhappy but again, that’s the risk you take… I don’t have much money but have managed to back 24 Kickstarters (some belatedly via PayPal like Jane Jensen’s) as I enjoy what is happening in the industry with the developers taking control again. I want to support what could be the revolution of the gaming industry.

Of the Kickstarter projects I’ve backed so far, 0 have been released. But I’m not too worried as most of them have shown legitimate progress in the updates… although I am a little worried about SpaceVenture and Jack Houston as things have gotten very quiet (unless I missed an update).

It’ll be interesting to see to what extent Kickstarter itself is held liable for failed projects. I haven’t read the company fine print, and I’m sure they’ve disclaimered the crap out of everything in terms of their own responsibility. But claiming you’re in a blame-free zone is a much different thing than being legally declared so.

It reminds me of how eBay/PayPal have accepted responsibility for failed transactions occurring under their watch. I’m sure Kickstarter will stand to the side with an innocent look on their faces while they continue to rake in (literal) millions as things inevitably do go wrong, but eventually their involvement is going to be challenged. No one’s going to sue small-time creators who have already gone broke. I bet it’ll be Kickstarter who eventually bears the brunt of litigation.

Personally, I think there should be some user protection if crowdfunding is going to remain a viable long-term thing. It’s all well and good for individuals to consider it a sunk-cost investment that may lead nowhere, but the terms are pretty clear. It IS a pre-order and contributors ARE promised a product at the end. Would it be okay if T-shirts and such weren’t mailed either? Of course not; it’s a transaction of money for goods. The game is no different.

Jackal - 12 April 2013 10:30 PM

It IS a pre-order and contributors ARE promised a product at the end. Would it be okay if T-shirts and such weren’t mailed either? Of course not; it’s a transaction of money for goods. The game is no different.

The whole nature of Kickstarter is different than buying a T-shirt though. Would you order a T-shirt from a place that will ship it at some ambiguous point 12-24 months into the future with no real assurance of what the final product would look like? I don’t think so.

I’ve said this before, but if Kickstarter is a store, it’s the worst store ever. The distinction really needs to be made. I think most people do look at it differently, but you’re right that that shouldn’t be taken for granted and KS needs to be thinking about how they frame things.

That’s a matter of logistics, though, and I’m talking legalities. It may be a crappy store, but even the crappiest stores should be bound by law to deliver sold goods. And the way I read crowdfunding campaign wording, a “sale” is indeed explicitly specified. (Even if Kickstarter hedges on that point in its own fine print, they’re clearly not enforcing it in the campaigns they allow.)

Note that I’m not discussing quality, simply product delivery. And really, despite the extended timeline of Kickstarter products, how is it different than any other preorder? There’s never a guarantee of quality, or even release date, just product at the end. EB doesn’t give you your money back if you preorder a turd, but they are required to send it to you if you paid for it. I’ve yet to hear an argument for why that shouldn’t be the case with Kickstarter.

Of course, the easy out here is for a developer who’s run out of money to barf out whatever they’ve got playable just to fulfill their obligation of “product”. So a certain degree of minimum quality will likely end up being determined at some point as well. But for now I’m just debating the possibility of projects getting canceled altogether with no game to show for it.

From the Kickstarter website:

Is a creator legally obligated to fulfill the promises of their project?

Yes. Kickstarter’s Terms of Use require creators to fulfill all rewards of their project or refund any backer whose reward they do not or cannot fulfill. (This is what creators see before they launch.) We crafted these terms to create a legal requirement for creators to follow through on their projects, and to give backers a recourse if they don’t. We hope that backers will consider using this provision only in cases where they feel that a creator has not made a good faith effort to complete the project and fulfill.

Can Kickstarter refund the money if a project is unable to fulfill?

No. Kickstarter doesn’t issue refunds, as transactions are between backers and the creator. In fact, Kickstarter never has the funds at all. When a project is successfully funded, money is transferred directly from backers’ credit cards to the project creator’s Amazon Payments account. It’s up to the creator to issue a refund, which they can do through their Amazon Payments account. (Like PayPal, Amazon Payments allows refunds for 60 days from the date of charge. After 60 days, creators cannot reverse the same charge to backers’ credit cards, so to issue refunds they’ll need to initiate a new transaction to send money via Amazon Payments or PayPal, send backers a check, or use another method. Our support team has guided creators in how to issue refunds like these before.)

That wording is as predictable as it is meaningless. Companies make up their own rules all the time, even if they don’t have a legal leg to stand on. Even signed contracts are overturned when they include terms that aren’t legally binding. So saying “not our fault” doesn’t mean they aren’t legally culpable. That remains to be seen when someone finally takes them to task.

Jackal - 13 April 2013 12:05 AM

That wording is as predictable as it is meaningless. Companies make up their own rules all the time, even if they don’t have a legal leg to stand on. Even signed contracts are overturned when they include terms that aren’t legally binding. So saying “not our fault” doesn’t mean they aren’t legally culpable. That remains to be seen when someone finally takes them to task.

Don’t know how much more clear Kickstarter can make it. They cannot and will not offer refunds. You seem to think Kickstarter should be punished for dishonest or failed developers. Why? Kickstarter is not a store. Kickstarter is an innovative tool to facilitate crowd-funding. You are implying that Kickstarter “doesn’t have a legal leg to stand on,” so please point to the express contract or implied contract between Kickstarter and the backers that says how Kickstarter is responsible for failed projects. The contracts are between Kickstarter and the project manager, and between the backers and the project manager.

If someone is running a business in a leased office building, and if that person engages in illegal activity and steals money while operating inside that leased building, should the building’s owner be held liable and be required to reimburse the victims? Of course not. There is no negligence. There is no complicity in the illegal activity.

Backers accept a certain amount of risk when giving their money for a project. They need to take it up with the developer if they are not satisfied with the final product. Sometimes in life you just get screwed, and you’re not always going to have the government or courts there to hold your hand or jump in and force someone else to bail you out. Deal with it. If someone saw Kickstarter as any other online store, too bad; ignorance is no excuse, and maybe they should read all the readily available fine print in the future. They need to go after the developer for a refund if they feel circumstances require it.

You talk of “legal culpability”, and of course there will be unscrupulous, money-hungry lawyers who would want to sue Kickstarter on behalf of unhappy backers. But the existence of frivolous lawsuits does not equal legal culpability. There is zero basis for punishing Kickstarter in the event of a project’s cancellation. Feeling that “someone has to pay!” is not good enough. Perhaps these lawyers will sue, laughably claiming that Kickstarter is abetting illegal activity, but really all they would be aiming for is a settlement to line their pockets.

Jackal - 12 April 2013 10:30 PM

I’m sure Kickstarter will stand to the side with an innocent look on their faces while they continue to rake in (literal) millions as things inevitably do go wrong, but eventually their involvement is going to be challenged.

So what if Kickstarter makes millions? Good for them. It’s called a successful business. We need more of it. The Kickstarter tool is facilitating the employment of many people. Your implication that they are sneakily skirting responsibility is very troubling. Kickstarter is innocent in the hypothetical situations described in this thread. A lot of this regulatory consumer “protection” is a fraud perpetrated by lawyers.

We ought to be denouncing frivolous lawsuits and shaming those who file them, NOT clamoring for a way to make Kickstarter pay (in the event of a project cancellation).

Quest1 - 13 April 2013 02:21 AM

Don’t know how much more clear Kickstarter can make it. They cannot and will not offer refunds. You seem to think Kickstarter should be punished for dishonest or failed developers. Why? Kickstarter is not a store. Kickstarter is an innovative tool to facilitate crowd-funding. You are implying that Kickstarter “doesn’t have a legal leg to stand on,” so please point to the express contract or implied contract between Kickstarter and the backers that says how Kickstarter is responsible for failed projects. The contracts are between Kickstarter and the project manager, and between the backers and the project manager.

Jackal has a point. What Kickstarter says or however clear they make it sound is irrelevant. Kickstarter can say anything they want, and whether it is legally valid or not will only be tested if and when someone takes them to court.

When there is a “sale”, the the promise to deliver the backer rewards *is* a sale, then it is very valid reason for a backer to go to court if they did not get their backer reward due to whatever reason. Whether they go after the person doing the kickstarter, or after kickstarter themselves, we will know only after someone does it.

Kickstarter is the middleman in the transaction. When I pay for backing a project, I am paying Kickstarter, not the company running the Kickstarter. So the transaction is between me and Kickstarter. Kickstarter then pays the company after taking their cut. It is equivalent of say, buying a rotten tomato in the market. I can blame the grocery shop for selling that to me, even if it was the farmer or distributor who made it rotten.

Siddhi - 13 April 2013 06:37 AM

It is equivalent of say, buying a rotten tomato in the market. I can blame the grocery shop for selling that to me, even if it was the farmer or distributor who made it rotten.

With Kickstarter, you are backing the attempt, not purchasing a finished product, ready-made or otherwise. As such, you accept the risk that comes along with it. In a grocery store, when you purchase a tomato, there is a sales agreement between the customer and the store regarding the purchase of the tomato for a particular price. There is no such contract between Kickstarter and backers. Therefore, your analogy is not a good one. Others have rightly compared Kickstarter to an online dating service; with an online dating service, you are paying for the chance to find love, but the site isn’t responsible nor owing you a refund if you fail to make a love connection.

That is not to say that some unscrupulous lawyers won’t try to go after Kickstarter to make a buck in the event of a canceled project. Should that happen, I fully expect the editors of adventuregamers.com and similar sites to quickly, forcefully and consistently rise to defend the best thing that has happened to adventure gaming in years. Such a lawsuit would be pure absurdity and should be called out as such. If Kickstarter had to waste money on costly lawyers, it could mean a passed on cost and higher fees for developers using the service and, therefore, less money going towards the projects’ actual development. In other words, it would be bad news for adventure gamers.

It is in Kickstarter’s best interest to promote responsible and realistic funding campaigns, but Kickstarter is not and should not be responsible for giving out refunds. That would totally kill the system. The onus should be placed squarely on the failed developers, who should have to answer for their failures and face whatever consequences come.

Jackal - 12 April 2013 11:49 PM

And really, despite the extended timeline of Kickstarter products, how is it different than any other preorder?

You get charged up front, before the product actually exists for one. Gamestop might take a $5 deposit, but most places, particularly online, don’t charge for pre-orders.

I see a Kickstarter reward as closer to that tote bag you get from donating to a PBS pledge drive than I do a conventional purchase, but you’re right that these are legal questions that need to be ironed out.

Of course, the easy out here is for a developer who’s run out of money to barf out whatever they’ve got playable just to fulfill their obligation of “product”.

In some cases, where promises are very vague, this may possible, but if they promised specific features and content, those need to be in the product.

Quest1 - 13 April 2013 07:22 AM

With Kickstarter, you are backing the attempt, not purchasing a finished product, ready-made or otherwise.

It’s not so simple, because I get promised certain rewards depending on the tier that I pledged at. So if my reward tier says I should get a T-shirt, then I MAY (and this is where the lawyers will have to debate it) be able to go to court if I don’t get the T-shirt. Yes, the game may or may not get made, but I am still entitled to the T-shirt.

But, what if the reward tier is the actual game itself? Then I am being promised a game which I do not get, then a similar course of action COULD be possible. COULD being the important word because no one knows unless it is tested in court.

I believe there have been some examples of Kickstarter creators being sued for failure to deliver the promised product. There’s no doubt that project creators are legally culpable to deliver on rewards.

The more interesting question to me is how these cases will impact how people use Kickstarter to conduct business, and if they have a chilling effect.