The Witchfinder points out that Kickstarter promises are a contract. Breaking those promises, no matter the excuse, may permanently damage the developers’ reputations as it has done Peter Molyneux with Godus. It may even lead to legal action.

Backers of promising Indie Game ‘That Which Sleeps’ have yet to see materials promised in November. The developers may have good reasons, for now they still have time … but the clock is ticking.

Kickstarter. Birthplace of some brilliant games. Yes I am looking at YOU, Shadowrun Returns and FTL.

Kickstarter. Abortion-clinic of failures like Godus. Designer, Peter Molyneux OBE has recently been torn apart by the media after it emerged that the project may not fulfil its promises. Putting a human face on it is the winner of Molyneux’s immediately previous game, Curiousity, who has yet to receive his prize money.

Molyneux has been criticised many times for hyping pre-release then delivering a product that did not include all his promises. For example on 01/10/2004 he published this on the Lionhead company forums,

“[…]I have come to realise that I should not talk about features too early so I am considering not talking about games as early as I do. This will mean that the Lionhead games will not be known about as early as they are, but I think this is the more industry standard. Our job as the Lionhead family of studios is to be as ambitious as we possibly can. But although we jump up and down in glee about the fabulous concepts and features we’re working on, I will not mention them to the outside world until we’ve implemented and tested them, and they are a reality.[…]”

There is a big difference now though to the state of play in 2004. Back in the day, the practice in the industry was to hype games, then release. Release and reviews would happen at roughly the same time. Your author read the reviews of Fable and when he handed over his money he knew roughly what he would be getting and what he would not. In fact, the Witchfinder was quite happy with the game.

The money had been paid over not on Molyneux’s promises or his hype but on a concrete product.

These days things are different. Sure, some games are released then reviewed and supported in the traditional way. What is new, however, is early access and crowd-funding.

In General Terms

An old style hype promise in return for no money is almost nothing in law or morality. I might promise to build a ladder to the moon, but when I fail, what is it to you? A promise in return for money though, like a Kickstarter, that is something else. That is something special. It is what lawyers like to call a contract. From before recorded history, humans have innately known that bargains must be kept. It is the root of social interaction. It is the beginning of justice. It is instinctive morality. The Romans called it, “Pacta sunt servanda” – Pacts must be kept.

When gamers hand over money before the game release in return for a specification or a set of promises that becomes an enforceable legal obligation on the developer. A breach of contract need not even be deliberate or negligent. Remedies for even an accidental, innocent breach of contract include damages, rescission, an injunction, mandatory and prohibitive orders and the payment of attorney’s fees.

Obtaining a contract by even an innocent misstatement of fact or law is misrepresentation. In the United Kingdom, the penalties for misrepresentation are very harsh. Under the Misrepresentation Act 1967, the burden of proof is partially reversed – when sued the Respondent must prove they reasonably believed the representation was true up until the contract was formed, or pay damages calculated on the basis of deliberate fraud.

“2 Damages for misrepresentation. (1)Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.”

The United States has many similar and equally harsh laws. For example the Federal Anti-Trust laws provide, per Title 15 › Chapter 1 › § 15 –

“(a) Amount of recovery; prejudgment interest

Except as provided in subsection (b) of this section, any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee. The court may award under this section, pursuant to a motion by such person promptly made, simple interest on actual damages for the period beginning on the date of service of such person’s pleading setting forth a claim under the antitrust laws and ending on the date of judgment, or for any shorter period therein, if the court finds that the award of such interest for such period is just in the circumstances.”

What does that block of American legalese mean? It means that the person suing on an Anti-Trust violation is entitled to –

the fair damages for a breach of contract

then times that by three

plus interest on the damages from when the lawsuit was filed

plus their attorney’s fees

So far there have been no claims in relation to crowd-funding projects. Losses are small, and the audience are often economically and legally weak – teenage game fans rarely issue proceedings in a Court, even a Small Claims Court. As the industry matures however it will become inevitable.

The Witchfinder does a lot of charity work helping the vulnerable in Court and thinks a couple of lawsuits would make people think carefully before making promises.

That Which Sleeps – King Dinosaur Games

So – turning back to ‘That Which Sleeps’. That Which Sleeps is a Kickstarter project. It had a long and very well presented crowd funding campaign which impressed the Witchfinder. There was a video apparently showing a game with placeholder graphics but animation and mechanics well under way, along with a cool concept –

At the time of the Kickstarter in September to October last year, the Witchfinder put down $50 . Your author even helped spread news of the game, for example by starting a thread on Quarter to Three and other indie game sites. Ordinarily your author would never back a Kickstarter before seeing a demo, but there was a lot of video, a promised demo and promised map viewer. Let us review some of those promises and representations.

We were promised that the game engine was ‘fully functional’ –

We were told estimated beta access would be in December –

The final update before the Kickstarter closed on 22/10/2014 was this. That final post, Update #14 was critical because it was the last one before the Kickstarter closed and the contract was formed. It is the statements and representations made before the contract that count. Kickstarter updates are sent to all existing backers and are prominent to all prospective backers. Of note is the promised beta schedule –

In terms of deliverable products, promised were,

“Initial Week – Access to Beta Backers forums where discussion will continue at around the same pace we’ve had here. We do plan to continue to be very collaborative and we’re looking to our Beta testers to give us honest and accurate feedback, as well as for things like bug testing, typos (you know we’ll make these), and general QA. Reference art for potential map assets will begin to be posted, and backers will be encouraged to contribute their own.”

That has been delivered. Also promised was –

“Week 2 – Deliver Scenario Viewer to Beta testers, we’ll also begin the process of curating art assets and map assets for coordination and discussion.”

So they promised to deliver the Scenario Viewer the second week after the Kickstarter ended. (Early November 2014). Even before they had the final art, using the existing place holder art. Not delivered. Then on 03/12/2014 we had this update –

“December – Scenario VIewer release, New map complete, overhaul existing scenarios with new settings, map editor complete

March – Final testing, release Beta and Mod Tools to Beta Backers”

Sadly, the scenario viewer was not released in December 2014, but, two weeks ago we had this update –

“The Map Builder is complete and will be in the hands of Beta Backers this weekend, and most important – every asset type is now in various stages of creation.”

Now, two weeks later it is not in my hands or of anyone else on the forum. So people started posting in the beta access forums. To receive this response –

Your Inquisitor will be candid. This tone of Josh is misplaced and far, far worse for him it sounds a lot like Peter Molyneux –

MOLYNEUX – “[…]I have come to realise that I should not talk about features too early so I am considering not talking about games as early as I do. This will mean that the Lionhead games will not be known about as early as they are, but I think this is the more industry standard.[…]”

JOSH – “[…]The quest for transparency has many pitfalls and in the future we will take a more formalized business approach and confirm full testing results before announcing any release dates.[…]”

When called on unfulfilled promises they adopt this passive aggressive approach of saying that there will be less information in future. Then one of the mods posted saying they would delete critical posts –

followed by an administrator, ‘Fenix’, from King Dinosaur Games, posting this –

Yes ‘Fenix’, you can in fact restrain the conduct of your moderator. That red in your name shows you are an administrator and you can remove his deletion powers.

What the Inquisition says to Josh and to Joseph is this – We support Indie Games. We cut them a lot of slack. You were linked you to this author’s preview of KeeperRL . That game had bugs but was by no means punished for alpha code in the preview. Indeed, the final review is likely to boost them a few points.

However getting snippy when called on your broken promises is a very bad move, no matter how inadvertent your mistakes. The Witchfinder still wants to feel passionate about That Which Sleeps. Your author still thinks the project can succeed. But three months after it was promised we have not seen a single working build of anything, even a support tool like the Scenario Viewer promised in November or the Map Editor you promised two weeks ago.

The only major promise kept was the forums and that is a very different thing from a working build of a piece of the game.

The Witchfinder acknowledges that there have been art assets on the forums. Your Inquisitor is prepared to believe that there have been delays with contractors. That is no excuse for the delay – the Scenario Viewer was promised with the original, placeholder assets.

Crowdfunding is to some extent speculative. It is inevitable that there may be delays indeed it is written into the Kickstarter standard contract. However at best KDG are guilty of extremely poor communication.

Consider this a warning shot. When things start to be released the Witchfinder will be delighted to speak well of you. Until then, Joseph Vivola and Joshua Perry need to remember they obtained over eighty five thousand dollars from backers on a promise. Until that promise is fulfilled their reputation in this industry, indeed in any industry, is on the line.

Update 15/02/2015

I have seen some trolling comments that I was the ‘only’ Kickstarter backer to complain about the repeated delays. This is obviously implausible, nevertheless I include the post immediately before mine from the thread on the backer forums as an example –