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111. Re: Shadowrun Returns DRM Clarified Apr 16, 2013, 01:36 Flatline
Beamer wrote on Apr 15, 2013, 09:28:
To my knowledge there's been one lawsuit based on Kickstarter, and it was in a Justice Court which leaves no precedent. A guy sued for his $70 back. And he didn't get it, because the guy he sued went bankrupt.

Kickstarter is not a promise of goods. It is not a store. It's not an investment, either. It's a donation, typically in exchange for a promise to get something if the project succeeds.

The project does not always succeed.

For the aforementioned lawsuit, the guy doing it had no clue how to run a company. He didn't negotiate his vendor contracts until after the Kickstarter ended. This is common, but the result was all his vendors knowing how much money he had available and being ruthless in negotiations. He did not lock his team in until afterwards, and several of his teammates made unreasonable demands after the Kickstarter ending, with one refusing to give up some crucial design documents until he got 50% of the company (ultimately helping lead to the company folding.)

But, per Kickstarter, nothing wrong was done. Kickstarter is not an investment, nor is it a store, nor is it a promise. Projects fail before coming to market all the time. Or change drastically.

Really, the best you can do is demand your money back.

And, in this case, you can't do that. They promised something without DRM. They will likely deliver something with DRM. Do you know what any court would say? You were promised a game and you got a game. That's it. Guess what: courts do not enforce every single part of a contract, assuming they'd even call this a contract. They determine if something is a condition or a promise (with Kickstarter, almost always definitely a promise), then if it's material or immaterial:
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

In the case of not being DRM-free enough, I doubt it would pass as being found material by most courts. It comes back down to whether the software is in any way less usable. I do not think a court would find there was any kind of damages here. You have your game, you can play your game, and financially you have lost no money. Sure, you paid for a DRM-free game, but what you really paid for was the game. You wanted the game. It being DRM-free just made it better to you. But it isn't as if the game is objectively worth less because it has DRM.

I generally agree here, but you're missing one large portion of your argument:

You're getting a second copy of the game, DRM free (in some cases 3 copies of the game), if you backed the kickstarter. The DRM free portion of the KS is mentioned, repeatedly, explicitly, in the rewards, and an argument could be made that in doing so, the DRM free part is a kickstarter reward.

Which would make a court case even more ridiculous, which is my point.

When you're throwing the accusation of fraud around, that's an actionable offense. But in reality, this isn't fraud, it's not even *close* to fraud, and it's hyperbolic whining and teeth gnashing to pretend otherwise.
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