Kickstarter - Court orders Payment for Failed Delivery

Ripper said:
Like SleepingDog mentioned, this is a civil case, and the question of theft doesn't really enter into it - that was just the choice of words the judge pulled out in his summary. I think the question is when does a court consider that a delay has become a failure to deliver - they will eventually draw a line.

For Star Citzen, they have a couple of problems (I should add, I don't have a problem with them, but legal proceedings have already started.). For starters, you have to be very careful when putting together a contract, because if the court deems the terms to be unreasonable, or violating stautory rights, they will strike it down.

Also, in their contract, they have two mutually contradictory terms:

That 12 months before refund claims will be up in November. But another clause says:

This contradicts the idea of a 12 month deadline before refunds, and essentially says that you have no claim if they fail to deliver what you paid for. When you have a contradiction in a contract, the terms most favourable to the party that did not draft it are enforced. Also, the idea of a contract that says they may never deliver what you paid for is very unlikely to stand up, in general.
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The Altius case was based on a breach of contract of the Kickstarter TOS. It's based on Altius failing to tell backers there was going to be a delay and why (which is apparently deceiving trade practices). It's mentioned in the "filed suit against" link.

As for the CIG TOS, that's not a contradiction (one is about delays and the other about running out of funds) and both of these are in the KS TOS might I add just with less legal-speak. I suspect both of these are very commons TOS entries in trading contracts.

And there is no lawsuit in the work, Derek Smart is in no legal position to demand anything from CIG, he was refunded. And outside of him, I haven't seen any backers interested in starting one…
 
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I think it is a contradiction, because of this sentence:

you agree that any unearned portion of the deposit shall not be refundable until and unless RSI has failed to deliver the pledge items and/or the Game to you within 12 months after the estimated delivery date.
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But it then says in another clause that you waive your right to a refund entirely if the game is not delivered at all. I believe that a pretty strong legal argument could be made that the first clause clearly implies that pledges are refundable once those conditions are met.

azarhal said:
As for the CIG TOS, that's not a contradiction (one is about delays and the other about running out of funds) and both of these are in the KS TOS might I add just with less legal-speak. I suspect both of these are very commons TOS entries in trading contracts.
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The second clause does not specifically say anything about running out of funds - the wording is simply that if "RSI is not able to deliver the Game and/or the pledge items" then you have no claim, other than to see the accounts to show the money was actually spent on the project. The idea of putting a clause in trade contracts to protect the company if it runs out of funds is a bit moot - if a company has run out of funds, there is nothing to sue against, and it will be liquidated to pay off what creditors it can.

I didn't say there was a lawsuit in progress, but Derek Smart (who strikes me as a douchebag, BTW) claims to have a sent a demand for "full forensic accounts", as a first step towards an action. I don't know the details of the rules on US class action suits, but I suspect that simply refunding Mr. Smart would not prevent him launching one on behalf of all backers, because he is still an interested party. If it were the case that class actions could be stopped by simply refunding the individual who starts it, they would never happen.
 
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Theft isn't a gray area in my book. If you accepted remuneration for a product or service, and failed to deliver, you have committed theft. Heck, in MY book, word alone or a handshake would also be sufficient cause to use the theft word. I've despised thieves and cheaters all my life, and when a judge cracks down on someone for getting caught doing those things, the sunshine just seems a little brighter to me!
 
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Carnifex said:
Theft isn't a gray area in my book. If you accepted remuneration for a product or service, and failed to deliver, you have committed theft. Heck, in MY book, word alone or a handshake would also be sufficient cause to use the theft word. I've despised thieves and cheaters all my life, and when a judge cracks down on someone for getting caught doing those things, the sunshine just seems a little brighter to me!
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Sadly Carnifex common sense isn't common any more. The majority of the world would agree with some version of what you just said, but thats not the way it works any more. Now its a line by line analysis involving the letter of the law and not the spirit of it.
 
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The title mentions the crucial point: failed delivery.
The guy made the mistake. He failed. He did not deliver.

As he did not deliver, he could not under deliver. That is the trick he missed.
If only he had planned to under deliver instead of planning to deliver, the failure would not have been on the horizon and he could be right now promoting his next crowdfunding project.

The statement is right from this world: crowdfunding theft wont be tolerated.It will be encouraged by favouring sustainable theft. The life of a thieve is made harder when he fails. Not a sustainable path. Theft by underdelivery is so much more sustainable.

Cracking on failures, give protection to consters.
 
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Ripper said:
I didn't say there was a lawsuit in progress, but Derek Smart (who strikes me as a douchebag, BTW) claims to have a sent a demand for "full forensic accounts", as a first step towards an action. I don't know the details of the rules on US class action suits, but I suspect that simply refunding Mr. Smart would not prevent him launching one on behalf of all backers, because he is still an interested party. If it were the case that class actions could be stopped by simply refunding the individual who starts it, they would never happen.
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He was refunded before he started any legal action. As for the US law on class action lawsuit:

"To become a class action lawsuit, the Lead Plaintiff must first file his or her claim, then request that the court certifies the class. Several criteria must be met in order for a class to become certified. All plaintiffs must be part of a "significantly large" group of people having the same or similar legal claims against the defendant. For example, class certification may not be granted if the plaintiffs have experienced different side effects in a hazardous drug claim. The Lead Plaintiff must be typical of the other class members and have no conflicts with them. He or she must also be willing to fight for the best possible outcome for the entire class and not just look out for their own personal interests.
" (source)

When they refunded Derek, they removed it from the group of backers who haven't been refunded. Also, he has conflict with backers, as shown by the petition that says he doesn't represent them.

Finally, CIG did send him a legal answer for his legal letter, he has been a lot more silent ever since.
 
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I think, though, that when it talks about being "typical of the other class members", that only applies to other members of the set that feel cheated and want a refund, not the set of all backers. If, for example, a company sold a faulty product that was bad in 1 in 10 cases, I don't think the class action would be barred because they were not typical or in agreement with the 9 in 10 satisfied customers. I suspect that if he wanted to, he could probably round up enough malcontents to constitute a "significantly large" group.
I know it is the case that when a class action succeeds, the plaintiffs that organised it are often given an "incentive award" by the court, because it is considered a service to the community. Often this is of the order of tens of thousands, so a strong incentive exists beyond a personal refund.

Anyhow, as I said, it's not something I want to see, and I don't think it would likely happen tomorrow. But if they drag it out for another couple of years, I still think they need to be careful.
 
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Is that the same Derek Smart as the guy that did that Battlecruiser (I think that's what it was called) game about 15 years ago?


-kaos
 
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Hurls said:
Project Phoenix as another example.
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Just had a quick look at that one - another mess. One of the comments from the devs was telling:

RE: refunds: Delays happen. As a rule, KS is a place to invest (note the connotation for risk - meaning potential loss) in an idea. That idea may or may not come to fruition or it could simply be delayed.
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If you look at what that lawyer explains in the article I posted, you can see how confused some of these devs are about their situation and responsibilities. Their backers are not investors, and they are on the hook for what were essentially future sales of the product.
 
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pibbur who said:
I get a 404 from that link. Scammy indeed?

pibbur
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The "..." after the URL breaks the link I guess?

I like how pretty much all the art in that kickstarter is stolen - something chrome and google make really easy to find out with a simple right click.
 
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Carnifex said:
Theft isn't a gray area in my book.
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It is not in other people's book either.
Black theft cases and white theft cases. Not delivering and underlivering.
People crack on black theft and give protection for white theft.
It is a black and white issue, no shades in gray in the mix.

Ripper said:
If you look at what that lawyer explains in the article I posted, you can see how confused some of these devs are about their situation and responsibilities.
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Or not. That lawyer simply plays the rule of law card. Lawyers get paid whether they lose or win the case. He is inviting people to check the validity of his claim, at their own expense.

Now, how things work and the prediction going with it:

Except for projects involving toxic people like Peter Molyneux (the man gathered so much hatred he wont be given protection), or eastern european people (they wont be given protection as this will be a good way to exclude them from the opportunity of benefiting from white theft business), the other projects are legally safe as long as they are involved in white theft.
 
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