Didn’t get your Kickstarter perk? With new terms, Kickstarter doesn’t care

Greenpoint’s Kickstarter updated its terms of service last week, the company announced via email and a Friday blog post. The biggest news from the update is that Kickstarter says it has no involvement in commitments between project creators and their backers (and vice versa).

The relevant section, Section 4, can be read here. We also took note of a rule addressing a practice called “kicktrolling,” where malicious backers get creators’ hopes up only to pull back their support in the final minutes.

The critical quote from the new Terms of Use is:

When a creator posts a project on Kickstarter, they’re inviting other people to form a contract with them. Anyone who backs a project is accepting the creator’s offer, and forming that contract.

Kickstarter is not a part of this contract — the contract is a direct legal agreement between creators and their backers.

From there, Kickstarter argues that creators need to do their best to get the project finished, send out rewards as promised, let backers know what’s up along the way and, if it all crashes and burns, return any money that’s left.

Also, don’t lie.

At the end of Section 4, it points out that backers have the right to seek legal action against a creator if a project fails to deliver. Here’s where it gets a little weird, though. If Kickstarter is washing its hands of the whole disagreement, how are backers supposed to effectively engage in legal action?

Take the case of the Neal Stephenson’s recently cancelled project, CLANG, a swordfighting game. It raised $526,125 from 9,023 people, with an average donation of $58 per game. Is $58 enough for any one person to go court over? No. Is a half-million? Maybe.

Could a decent case be made that some portion of that money was used in the way it was intended, and the fact that nothing materialized is the legitimate risk you take when you back a project before the work has started?

Could a similarly substantive case be made that some portion of the funds really ought to be redistributed? Yes? Maybe? It depends?

What’s worrisome about Kickstarter’s refusal about this soft spot in its platform is that the best possible enforcement mechanism that could result from this system is some sort of tiny class-action mill from a boutique law firm.

At a base level, it seems like there would be some way in which Kickstarter would be able to provide some accountability for money spent. Going beyond that, it seems like there would also be some possibility for insurance policies in cases of fraud or untimely deaths of creators.

In Section 6, just in case you thought Kickstarter would do anything about what it says in Section 4, it clarifies that it won’t:

We don’t become involved in disputes between users, or between users and any third party relating to the use of the Services. We don’t oversee the performance or punctuality of projects, and we don’t endorse any content users submit to the Site.

Additionally, Kickstarter does not offer refunds.

In other news, Kickstarter has a rule against “kicktrolling,” in Section 5. This is a carryover from previous terms, but it’s worth pointing out.

Kicktrolling is when someone pledges a large amount to a campaign, enough that could be a difference-maker for a campaign, and then cancels that pledge shortly before the campaign ends. This can have the effect both of shifting a project from successful to unsuccessful and can lead to a creator putting less work into promoting the project in the final days because he or she thinks they’re all set.

Now, if changing your pledge amount in the last 24 hours of a campaign would alter its prospect for success, you have to contact customer service to do so.