"unless the Project Creator is
unable or unwilling to fulfill the reward."
Read that again. If they haven't fulfilled their explicit promises, a refund is required.
Read that again. If they haven't fulfilled their explicit promises, a refund is required.
I don't think its too loose to hold up at all, but I do think there is some question about how courts will construe timing requirements. Certainly, there is no obligation sooner than the estimated delivery date, but its not entirely clear when a deliver-or-refund demand becomes enforceable.
<blockquote>It will be too easy for a lawyer to say "my client is both willing and able to fulfill these rewards, he just needs more time/money/etc". </blockquote>
Saying that you need resources (e.g., money) you do not have to meet an obligation is equivalent to saying that you are unable to meet the obligation. Given the way the time conditions are written, demonstrating that more time was needed, and that that time was reasonable in light of the circumstances, and that the creator did not need other resources they didn't have might work.
In other words, they're obligated to refund $170k that they don't have anymore.
I've edited to reflect that.
But agree with your original comment: if this goes through till the end (with lawsuits and all the drama), it'll be great for Kickstarter. It'll improve the quality and create a much healthier ecosystem.
Another project that got really close to a class action was OpenVizsla USB Sniffer. The conversation moved out of Kickstarter into the discussion list that was created by/for backers, but the authors finally showed up and recognized (somewhat) the problems, and are trying to fix it.
I disagree. I think we really need a funding solution where $150k - $170k projects can fail due to poor execution (rather than fraud) without involving lawsuits. As long as everyone is clear about what their money's doing at the outset.
I don't see why crowdfunding should be any different than more formal investors here.
Founders (usually) give updates to their investors. They report the progress, ask for help, explain the issues. When things go wrong, usually investors are the first ones to offer help - providing experience, contacts, or sometimes more money. It's their money that is at stake, after all.
That's exactly the opposite of failed projects on Kickstarter. Usually (and I'm generalizing here; just using my own sample of 60-70 projects I sponsored, with 5% failure rate or so) the authors simply stop providing updates.
They realize they were overly ambitious, or underestimated the costs, or had issues with the team, or simply don't have the competence needed to execute within the time/budget available. Updates become more sparse, and eventually stops. The crowd starts to smell blood and gets angry, digs personal information about the founder, and things get nasty really quick. Just like it happened with the OP, or OpenVizla, or several other pseudo-failed projects.
I still think we need one good public failure, with all the drama associated, to clarify to everybody - authors & backers - some very wrong misconceptions about crowdsourcing. Yes, projects CAN fail, and as a backer you have to accept that risk, or wait to buy the product at Amazon.
But no, authors cannot simply disappear, run ashamed of their own failure. It doesn't matter if you underestimated the effort, or worked really hard over the weekends, or lost your day job, or life got in the way. Nothing will matter, unless you explain, clearly, to your backers. They may get pissed off, but it's better than the alternative.
Authors have to understand that if the ship sinks, you'll have to man up and stay till the end. So be prepared; this is not a free ride, with zero risks.
Another thing that would be very positive is to have public financial disclosure. Authors should be required to submit a financial plan explaining how the money will be used - and another one mid-project explain how the money was spent. I'm sure it'd be eye opening, in both ways (people would see how expensive it is to make, say, a game, and authors would think twice before spending every penny).
My point was that KS and traditional investment should operate in more or less the same way, especially regarding issues - whether that's simply letting people know they've hit a snag and are working on it, or are asking for advice on the best way to proceed. I realize it's difficult to scale the concept of a seed round to hundreds or thousands of backers, but an email blast to 5-10 is just as easy (or hard) to write as one going to 5000.
You just need much better filters on the responses.
The problem isn't backers treating Kickstarter as pre-order for the product being developed by the project, its project creators doing that by setting rewards that depend on project success.
The T-shirt and signatures are completely incidental to the project being kick-started, yet the arguments here are as if someone had purchased a T-shirt on Ebay for $1000 and the seller failed to ship.
That means that if I'm a recording artist, I would be a fool to make the reward a copy of the finished album because that means that if the album is never completed, the reward cannot be delivered and I would therefore have to refund money I already spent.
If it's a case of "I've written an albums worth of music, but I need $ for studio time, post-production and pressing CDs", then it should be low risk for the artist. You should know how much those things cost, and set your goal accordingly.
However, if you want the money to take X months off work and write the music, then go to the studio ..., that will create risk for you. What if you don't get a CD worth of music written in those X months? (Short answer: Just record random crap, nothing says people have to enjoy your rewards)
The risks for the producer are: 1) If the project is something that is difficult to cost up-front (like all these games that get funded on KS) 2) Your rewards are things you're inventing just for KS (like T-Shirts). Those things cost you money, that money comes out of your total pool, so you need to put extract capacity into the pool to pay for the production of the extras. Getting that right can be harder than people think.
All those KS projects that amount to fund my (team's) time to develop stuff are high risk for both the backers and the producer (if it goes wrong, the producer will owe money, but the backers won't ever get what they're owed)
The projects that are about funding the production phase of a project after the producer has poured their own time into the design phase are much more in line with what KS's ToS actually expect.
I've heard too many horror stories about people on KS offering tees for $X only to find that the screen printer didn't mention a bunch of fees relating to setup/fulfillment/shipping and the true cost is $X*2 and the creator ends up spending a ton of energy and money trying to fix the issue.
Disclaimer: I work for Teespring, and this is exactly what we do (so I may be biased).
Yes, it does, just not in the excerpt provided upthread. The following bullet point is: "Project Creators are required to fulfill all rewards of their successful fundraising campaigns or refund any Backer whose reward they do not or cannot fulfill."