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TGN Editorial: Kickstarter Updates Terms and Conditions

Kickstarter has updated their Terms of Service. What does this mean for you? TGN's Enrico Nardini lets us know what's going on with the changes and what this means for you.


Enrico: The landscape of the entire tabletop game industry was irrevocably changed when
Kickstarter hit the scene. Independent game companies have been able to grow and flourish with the help of consumers, who in turn are happy to have so many new alternatives. All this works great, until it doesn’t, and...

Ugh. You’ve heard this all before, and I’m sure you know what Kickstarter is.

I feel completely redundant writing this. Why? Because, if you have ever backed a Kickstarter project (and since you are reading this on a tabletop gaming news site, and Kickstarter is super popular with tabletop gamers, you likely have), you are already aware that their Terms of Use document has been updated. Yet, this is super important to us as tabletop gamers, because it addresses the pernicious issue of failed projects, by trying to clearly define the creator/backer relationship.

Yancey Strickler posted an announcement about the updated Terms of Use yesterday on the Kickstarter blog; which was in turn, sent out in an email blast to Kickstarter creators and backers. Strickler’s blog entry presents a general overview of the changes, which included a reduction in “legal jargon.” The stated goal: Making everyone’s interactions on the site simple and expectations clear.

What is interesting about the post is the number of times that the degree of culpability Kickstarter has towards failed projects is asserted, and to be clear, they assert that their culpability is zero. The Trust & Safety page is referenced in the first paragraph, and it states, in bold, that, “Creators are responsible for their projects.” Two of the five paragraphs address their approach to dealing with a project that has complications or fails, including a hyperlink directly to Section 4 of the Terms of Use titled: How Projects Work. Here it is once again stated that, “The creator is solely responsible for fulfilling the promises made in their project.”

This section includes a number of highlighted paragraphs and bullet points outlining the relationship between the creator and backer in terms of their responsibilities. It states boldly that, “When a project is successfully funded, the creator must complete and fulfill each reward.”

This statement seems to confirm the creators responsibility in unambiguous terms. Yet, it is followed by a number of bullet points detailing ways in which a failed project can remedy the situation. What follows is the list from Section 4 detailing alternate ways to fulfill obligations:

• They post an update that explains what work has been done, how funds were used, and what prevents them from finishing the project as planned.

• They work diligently and in good faith to bring the project to the best possible conclusion in a timeframe that’s communicated to backers.

• They’re able to demonstrate that they’ve used funds appropriately and made every reasonable effort to complete the project as promised.

• They’ve been honest, and have made no material misrepresentations in their communication to backers.

• They offer to return any remaining funds to backers who have not received their reward (in proportion to the amounts pledged), or else explain how those funds will be used to complete the project in some alternate form.

What happened to creating and fulfilling each reward? Unlike the statement leading the section, these points seem rather vaguely defined. I’m not a lawyer, so there may actually be a clear and concise definition to “working in good faith” or “reasonable effort.” And if there is, that’s a good thing. But, to this legal layman, it seems like there is still plenty of wiggle room here. It’s especially odd considering the last part of the highlighted section states that a creator unable to satisfy the terms of agreement could be held legally responsible by the backers.

Of course, I’m being a bit purposefully hyperbolic. Some projects fail for reasons beyond the control of their creators, and there needs to be exceptions for those instances. But, it is interesting that such a direct assertion of responsibility is followed by a series of points which appear so much less so.

The option of taking legal action is quite a paradigm shift for Kickstarter, as it was often previously asserted that backers were not afforded the same legal protection as regular consumers. Essentially, you were buying on speculation, and if a project failed to meet its stated goal, caveat emptor, and better luck next time. This assertion was blown out of the water four months ago when the Washington State Attorney General filed a consumer protection lawsuit against the Asylum Playing Cards Kickstarter.

I’d love to say that the new terms make me feel like I’m more likely to receive compensation on failed projects, but Section 4 seems to offer a number of “outs” for creators. This may be due to my lack of understanding the legal terms or the vague language associated with them. However, it is nice to have in print that legal action is an option for backers. I think a statement like that will be noticed by creators, and may force the more duplicitous users to search for greener pastures.

It’s also important to note that a failed Kickstarter is not always due to thievery or negligence. This seems to be accounted for in the bullet points above. And as for lateness, almost every Kickstarter I ever have backed was delivered later than promised. That seems to be the cost of doing business, especially if the Kickstarter turns out to be wildly more successful than originally anticipated.

It will be interesting to see how these new terms affect the current tabletop gaming Kickstarter market, which is by its nature, different from say, a Kickstarter project for an indie film, music compilation, or popular children’s TV show reboot.

- Enrico Nardini

Have an opinion on Kickstarter’s new terms? Leave a comment below!