Torment: Tides of Numenera - A Look Back

Something prevents the creator from being able to finish the project as promised. Yes, the localization costs too much since the scope of the game grew (which is also a boon for most of the backers) and they didn't want to half-ass it and provide a garbage localization (which they could have and gotten off scot-free, since they technically would have delivered the localization, no matter how crude it may have been.).

Best possible conclusion equals best possible by InXile's discretion as well, I would reckon. The backers are included in that, but since InXile has already provided plenty of information on how they will further satisfy backers (improved content for those who want it, refunds for those who want out), it's really a moot point.

I think it's a common sense thing. It doesn't need legalese and a team of lawyers working to poke holes in every word, IMO. Maybe going forward Kickstarter will be more heavily regulated, which probably wouldn't be a good thing in the long run and could essentially strangle crowdfunding, but until then things like this will happen and aren't a big deal. (Sorry, my Italian friends. I love you. Voler bene.)

As I've already pointed out, the legality of the situation would be determined by established law, not Kickstarter's policies, and a company that does not deliver what is promised is likely to be in hot water if it ever went to court.

Just looking at the KS wording, a common-sense and non-legalistic reading is indeed all that's required. A company that has greater resources, but chooses to restrict themselves to an internal budget, is simply not prevented from delivering on the contract.

And to say that the "best possible" outcome is determined not by the clear meaning of the words, but by their own discretion - that's certainly legalistic nonsense.

This really is very clear cut. They decided, for their own benefit, not to do a piece of work they were contractually obliged to do, even though they have the resources to do it. That's simply wrong, and a court would sort them out in short order.

EDIT: Just for the sake of common-sense everyday examples.

You make a contract with me to build you a PC, and we set a price. I have several other contracts, and money in the bank. When I come to build yours, I have a nightmare with new hardware problems I've never come across before, and it takes me 3 days of my budgeted time instead of my costed 4 hours. So, I say to you, sorry, cost overruns have "prevented" me from delivering the full spec as contracted, and I've had to reduce the spec, but it's my best effort under the circumstances.

I'm going to dip out of this discussion as there's a lot of grey area and my law firm doesn't pay me enough to research all this crap.

No problem. Bear in mind, I was saying that I think we should be flexible on the actual game design-related changes. Personally, I think it's only this matter of skipping localisation work that is clearly problematic.

Originally Posted by Ripper
As was explained in that article, the KS terms are merely brief guidelines for the benefit of both parties. They do not have legal force over the fundamental contract to purchase that is made.

No, the part you quoted (that Fluent posted) aren't guidelines, they ARE the contract. What he quoted is a direct excerpt (he left out the 1st paragraph) of the contract between the creator and the backer that you agree to when you back any Kickstarter project. The Kickstarter terms make it clear that when you back something, that's the contract you're agreeing to. You may need to check out section 4 ("How Projects Work") of the Kickstarter terms. There is no purchase mentioned, just the contract.

From the article by a games industry lawyer that I posted.

Unfortunately, Kickstarter’s Terms of Service only broadly explain the complex legal relationship created between backers and campaign creator.
…
While Kickstarter explains, albeit briefly, that their service is not a traditional storefront for people to sell currently-available goods and that the agreement between a campaigner and backer is contractual, they fail to disclose in detail that the sale of future goods, including those being pitched in Kickstarter campaigns, is wrapped in binding and enforceable law.

http://www.gamasutra.com/blogs/DanRo…iabilities.php

I am in favor of flexibility here and not overregulation or extreme defining of legalities. I don't want to say much else other than I hope Kickstarter continues to work to fund these great RPGs. It may be for selfish reasons, but I love that the little devs can make their dream games on their terms for the most part. While I also want to see many more small KSers succeed (the ones that really, really need the money), the middle or larger sized ones have led to damn fine games as well. I hope that continues and this isn't just a fad.

I am, however, still extremely salty that Deathfire wasn't funded. How could that happen?!?

Originally Posted by Ripper
From the article by a games industry lawyer that I posted.



http://www.gamasutra.com/blogs/DanRo…iabilities.php

Well OK, that's one lawyer's opinion. It's always easy to find a different lawyer with a different opinion on any given topic. Either way, Kickstarter lays out a clear enough contract between the creator and backers…if a given court in a given country decides there's other stuff involved, then so be it, but that's beyond their control and any such decision could easily go either way.

Even if we take that section 4 as the contract, all it's really doing is saying that the creators must deliver the rewards as specified. Then it goes on to spell out advice to the creators as to what they should do to cover themselves in the event of being unable to do so. Essentially, everything it's saying is that, unless they do everything possible to deliver the rewards as best they can, they will be open to action from the backers.

What I'm arguing, is that if a company has resources beyond the KS funds, they would be expected to use them to honour their commitments, as part of that definition of doing everything possible. That's not really a complex contractual question - if you have agreed to deliver something at a set price, you must do so - if you've underestimated the costs to you and set the budget too low, you're still on the hook.

Actually they changed the terms of service for kickstarter in 2013.

The previous ones said that creators had to offer refund if a pledge level was unable or unwilling to be delivered.

They changed this shortly after Shroud of the Avatar however.

What I'm getting at is that whatever KS says or doesn't say in their terms, the laws governing the sale of goods would override it.

I think another way of looking at the status of KS transactions is to ask the taxman. Try telling the man from the IRS that you accept "pledges" at a set price, and "backers" who pay this are offered a set "reward", but aren't investors. He would give you a special taxman look, and tell you no - your "pledge levels" are prices, and your "rewards" are the products you are selling. And pay some tax on them please.

There's also the issue of the difference between a pledge level and a stretch goal. When you pay for a pledge, you receive an email (if the project is successful) with your pledge text. Wouldn't this be the 'contract'? What if they add new stretch goals or change stretch goals after you pledged but before the pledge time ends? I don't think any of this is clear… will they have to see at what second your pledge was made and what was the text of the stretch goals at that moment in time to see what you should receive?

These types of things are why I got out of kickstarter and any other type of pledge system. I'll buy your game when it is released unless you have Bethesda in the company name Okay, I might preorder if a game is feature complete and I liked the trailers. I've done that a few times.

With regard to the pledge levels, I think that would probably be easy enough to adjudicate. The idea of groups making a purchase, sometimes with scaling benefits to the size of the purchase, is not new. I think the pledge levels for the whole group would be enforceable.

In the end, nothing about litigation is certain until it's decided in court. What I'm arguing, is that KS transactions are legally purchases - which creates a duty to deliver as promised. Much of what KS says about risk and dealing with failures is thinking in terms of each project being a startup. In those cases, when the money's gone, it's gone, and only best efforts at restitution are possible.

But, when it's a viable business that's making sales through KS, they don't get to ringfence the money from the KS, and then default on certain deliverables if they happen to exceed that budget. They have made that sale, and how much it costs them to deliver it is their problem.

I think a court would be flexible on creative elements of the game being changed, if the overall product is deemed to essentially live up to its billing. But, just choosing to cut a localisation that's a contracted part of the sale, when, as a business, you could afford to do it? No way.

Originally Posted by Fluent
I am, however, still extremely salty that Deathfire wasn't funded. How could that happen?!?

Weak marketing, in fact the whole pitch was weak. And also looked too much like a Grimrock clone, despite having some really cool systems. And also the timing was off, after big campaigns stormed through KS.