>"Yes your honor, this did not apply at the time of pledge, but we updated the TOS, and he specifically agreed to updated TOS as part of his playing the beta test and here is the timestamp when he did so through his account."
well, that'd still be plenty good reason to discuss how the modern practices of EULAs and TOS clearly circumvent the spirit of contract law, but it wouldn't be a new practice at all either. And it seems like it'd be a pretty straightforward, slam dunk thing to say too.
The article though doesn't make it sound like that was the argument or came up. Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. But if the judge arbitrarily decided it applied retroactively rather then "it applies because he agreed it would at a later date" that'd absolutely be pretty scary.
Yeah, as a Star Citizen backer (at an extremely modest level) I think that it just wasn't spelled out in the article. There was a LOT of hubub in the community when they added this new clause to the TOS, because you had to accept it to continue playing the alpha, which in turn meant that you could never get a refund.
Now I do agree that it would be very nice to see that the judge confirmed that the user actually went through with this agreement personally and that his acceptance was not just implied by the fact that the change was made a ways back in the release cycle.
There is an important distinction to be made.
I agree that he should not be entitled to change his mind about wanting a refund, years down the line.
But a corporation should not be entitled to unilaterally declare itself a sovereign entity, where it becomes both the defendant and the judge in lawsuits brought against it!
So sure, right verdict, but based on really terrible legal reasoning that needs to be overturned.
That's not a refund years after one received a product, it's years after he was promised a product that he has not yet received!
The fact that they gave him prototypes of the product in the meanwhile has little relevance (altough if those "prototypes" were explicitly mentioned as part of what you would get in exchange of the funding, they could be regarded as a partial delivery and their assessed value ought to be discounted from the refund).
But I really don't even know the Kickstarter terms, I'm just speculating...
In the US, both laws (other than laws criminalizing conduct or increasing punishment for a crime, where the prohibition on ex post facto laws applies) and contracts can be, and sometimes are, retroactive.
Could you expand upon this a bit? In the US bills of attainder and ex post facto laws were clearly banned for both the Federal and State government from the founding of the country, though I remember reading that despite statements from the founders SCOTUS has been shakier on applying it to civil vs criminal law.
But it's not clear to me how that relates to purely private contracts, unless there is something in California regulating it? Further to your own point:
>A new TOS can force you to cede rights from that point onward.
It seems like that could cover this just fine couldn't it? Ie., two parties could agree that regardless of past or ongoing legal interactions, any future new legal interactions could be governed under different rules. I'm not sure that'd be "retroactive", it doesn't govern anything undertaken under the previous agreement, it modifies it going forward. Are you saying that contracts may never be modified from their original form? That doesn't jive at all with my (admittedly non-lawyer) understanding. It'd be against all sorts of bankruptcy proceedings and private settlements for example, since those often involve modifying previously agreed terms of previously engaged in financial exchanges.
Granted this all puts aside questions of adhesion and whether he even did agree to new TOS at all of course. But assuming during his ongoing play he was presented with a new TOS, agreed to it, and then at a later date filed suit, it doesn't seem novel at least (even if we think certain rights should not be contractable) that their legal interactions after the agreement date would be governed by the new TOS.
The whole EULA/TOS nonsense is crazy in general, but RSI isn't doing anything unusual here, and I'm not surprised this is how a judge took it.
The idea that someone could make 61 different purchases over a span of years, and then go back and think that they are entitled to refunds for all of them is a little crazy. And while the game isn't done, it is playable, and he did spend a significant amount of time playing it. It's unfortunate the game isn't developed the way he likes, but that is again, not an RSI-specific problem.