Last year, the Kickstarter Game ‘That Which Sleeps’ was announced. A well presented publicity and video campaign made for a Kickstarter that netted over $85,000 from backers on an initial $12,000 goal. Release of the beta was originally promised for December 2014. It is now a year since the product was funded on 22/10/2014 and backers have yet to see even a video of the game being played. ‘That Which Sleeps’ still slumbers fitfully and there is only the lurking, eldritch horror of … Those Who Wait.

I have a rule in relation to Kickstarters. It is a very simple rule. I will only back a game if it has a playable demo I have played and liked or the developers have previously released a game I enjoyed. I have only broken this rule once – when I backed Joseph Vivolo and Joshua Perry, trading as King Dinosaur Games, and put down $50 to back the Kickstarter for That Which Sleeps.

That Which Sleeps was intended to be a kind of ‘ancient evil simulator’. The player would control one of a number of slumbering villains locked away eons ago. As they stir towards full wakefulness they gather their powers like Sauron from the Lord of the Rings. Like Sauron the players must work in the shadows to avoid discovery whilst they are still weak lest the world unites against them, using agents and subtle manipulation.

A lot of development work had allegedly been done and from 29/08/2014 until 08/10/2014, King Dinosaur Games released 6 videos – just over one a week [1], [2], [3], [4], [5] and [6]. The videos portrayed a game nearing completion – and that was how Josh and Joseph represented it. They expressly stated they had a working game –

The original campaign page is still here (archive here) and what they promised was pretty clear. Just before the Kickstarter completed (which happened on 22/10/2014) they promised the following post release schedule –

During the Kickstarter, a number of stretch goals were approved, so we would have expected some delays. The final estimates above are important because at that point the KDGs knew a number of stretch goals were likely to be funded. They had also claimed that a scenario viewer that they had shown in some of the videos was already written, and said Beta backers could have it in week 2 with the original placeholder art to tide us over whilst we waited for beta.

By February, it was clear things were getting a bit strange. The deadline for beta had been put back in light of the stretch goals, but the scenario viewer had never been released. This was unacceptable because it had been said to be already written. Unlike a regular Kickstarter, where there is an element of uncertainty, that component was said to be already done at the time of contract. Eventually, Josh posted on the forums that a map editor would be available in place of the scenario viewer. It would, he said, be available that week.

Two weeks later we were still waiting and I wrote a critical article. Josh and Joseph reacted defensively to forum criticism and some of their remarks bore an eerie resemblance to Peter Molyneux’s statements when called on his unfulfilled promises. Nonetheless two weeks or so later a map editor did appear, along with the first video for 5 months.

The editor had limited functionality, allowing the editing of terrain and geographic features only. Backers could place mountains, rivers and trees but unlike the scenario viewer from the videos there were no towns, cities, ruins, heroes or villains. The editor included new terrain tile art KDG had commissioned with the Kickstarter money. Unlike the scenario viewer it did allow editing and naming of land areas in multiple in-game languages.

The map editor was the last time beta tier backers saw any working code of any kind. Higher paying mod tier backers were promised the release of game modification tools, accompanied by two videos [1] and [2]. Problem was, the mod tools did not work and this led to complaints from the mod backers. Four months later they were still waiting until a second attempt at the mod tools release in September.

Around about this time, based on the available evidence, I reluctantly began to form the view we had been seriously misled. We had almost nothing to show that the game was any nearer completion and we had yet to see someone play it. On 25/09/2015 I emailed the developers giving them just under a month’s notice that I was going to do a 1 year anniversary post. I would be as positive as I could, I said, but I needed to see compelling evidence of progress. The next day we received an apology of sorts from Joseph –

Josh responded with a post promising further releases to keep backers informed. Just a quick count-up – at that point in time 6 videos had been put up in just under 6 weeks before they received the money, 3 videos in the 11 months since the Kickstarter closed.

Since then we have really seen more of the same from KDG. Josh has made and broken several deadline promises in relation to videos and the mod tools. On one occasion he promised a release that day, and broke it.

Concerningly, Joseph Vivolo, one of the duo that makes up KDG, was critical of his business partner in forum posts made available to backers –

It is pretty clear a project is in trouble when one business partner is badmouthing the other to customers. The 3rd attempt at the mod tools was eventually released, a day later than the latest of a number of deadlines.

When I emailed the KDGs I said what would restore my confidence would be either –

“(a) an alpha or beta release

or

(b) at least one very detailed gameplay video showing the game being played, with minimal cutting (and it would be beneficial for there to be more than one)”

I later offered that I would settle for the mod tools and the promised ten turn gameplay video, or just to be allowed to see the ‘working’ game build from last year.

So far, Josh has released an update of the original scenario selection screen video – but that only shows the same functionality we saw last year. We have never seen this game being played outside some conflicts occurring within one single turn.

There has been a third release of the mod tools, and these are now said to be much less broken. It is possible to view and edit meta-data for units, traits, spells and a number of other items. However mod tier backers say they still do not contain core game elements such as the ancient evils, their powers, their agents and the possible events and challenges. Map and scenario editing functionality is still not in the mod tools.

Josh had promised the first gameplay video weeks ago, and on the week beginning 12/10/2015 he posted this –

By then, a gameplay video became, for me, a critical minimum. I have repeatedly warned King Dinosaur Games that without it, I will no longer have confidence in them. The deadline was missed and despite their own repeated promises, a year’s development, and a month’s warning from me, we have never seen this alleged game being played. Another deadline was put in place around 5am UTC Sunday 18/10/2015. Josh said the video would be with us in, ‘a couple of days’.

The Kickstarter is, as I mentioned in my previous article, a legal contract between creator and backers. The specific terms that applied to this project are the older ones. Newer terms were actually released during the ‘That Which Sleeps’ Kickstarter but only applied to projects started after that time. The older, applicable, terms are set out here, (archive here). The contract can be enforced either by backers or by the relevant authorities.

Where a contract is silent on the specific time to be taken, a court will consider the parties’ reasonable expectations. In this case the court will take account of the terms which refer to the uncertainty of projects to create a product but will also be heavily informed by these words from KDG, “We have a working game that we will complete and deliver in a timely fashion”. A court will also have regard to the fact that the estimates were not significantly revised even at the time of the final update when KDG knew nearly all the stretch goals had been met.

Last night I observed that new deadline too was approaching and if it was not met I would asked for a refund and / or take steps to enforce the contract. Kickstarter terms say that a creator may give a full refund to a backer at any time, which extinguishes the contract between them and that backer. KDG knew I had promised a positive article if the video was out by 22/10/2015, or a critical one if it was not.

In my time zone in the United Kingdom, the latest deadline for the gameplay video would pass whilst I slept. This morning I awoke. There was no video – just an email in my inbox informing me that $50 had been refunded to my account and a note saying, “Refund for That Which Sleeps – I will still honor our original agreement and send you a game key when we release”. My forum access seems to have been ended.

That might sound like a fair outcome, but I will take that promise with a heavy pinch of salt – KDG have broken nearly every other promise they have made all year. Things have been delivered late, partially complete, or not at all.

The United States Federal authorities are getting tough with rogue Kickstarter projects and recently took legal action against a similarly Lovecraftian game called, ‘The Doom that Came to Atlantic City’ (archive here).

A month or so ago I told Josh and Joseph that my trust for them was running on vapours. The gas tank was nearly out. It is time. I am doing ok in my job. To me $50 is not a huge amount of money but many backers may be students, young or unemployed. Why should they have to wait?

We did not contract with KDG, with Josh and Joseph, for a game next year or 5 years down the line. We contracted on the basis of their representation it was already done. They said they had a working game they wanted to polish but when invited to send your author a copy, in confidence, of that build to prove it ever existed they failed to do so.

The FTC have an online complaints form here. I no longer have a contract with KDG, but if other backers are now concerned I suggest that they ask for refunds and if they are not promptly forthcoming, contact the FTC.

I suggest including a link to the Kickstarter campaign, a link to the final update before the contract became binding and an explanation of the fact that now, a year down the line, we do not have a product we were promised was working and would be available for beta in December 2014. For those who have waited, it is time to rouse from their eons long slumber and wreak justice on those who have wronged them!