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Kickstarter project hit by consumer protection complaint for failure to deliver

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40hz:
If a person advertises on a billboard, and people are dissatisfied with the outcome of their transaction regarding the product advertised, is the owner of the billboard responsible?
-wraith808 (May 06, 2014, 05:10 PM)
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That depends.

If the person selling the billboard collects pledge money and holds it in escrow for the person who bought the advertising pending a goal being reached then the billboard company is entering into a fiduciary arrangement of some sort with the advertiser.

If Kickstarter just charged a declared fee up front to provide listing space and bandwidth, there would be no fiduciary.

If Kickstarter didn't set restrictions as to the type or scope of what was being listed (other than to make sure they weren't offering something illegal) there would likely be no question of any partnership.

But because they do collect and distribute funds received - and because they maintain controls on what can be listed and for what purposes - they're a bit more than a billboard or some grocery store's community bulletin board. Either of those actions creates an involvement on their part. Exactly how much of an involvement it is can get complicated because the relevant laws governing such things are pretty complex. And there are differing criteria to be addresser depending on whether it's considered an agency, a partnership, or a fiduciary relationship. It can also get into identifying the degree of "arm's length" at which matters are conducted, and the "at risk" element in the arrangement. And this needs to be determined on a case by case basis. One size does not fit all. And declaring something is "X" doesn’t automatically make it an "X." The reality of how something operates (both in fact and appearance) weighs into the determination as well.

So can Kickstarter itself get into trouble over any of this? It's a definite possibility although the state attorneys don't seem to be interested in pursuing that argument right now. And I'm guessing they won't in this particular case because it would seem a bit of a stretch for them to go after Kickstarter. And I think most people would see it that way too.

Still...stranger things have happened. :o

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Note: the law doesn't deal in analogies. Things aren't "like" something when it comes to legal reasoning. Things "are" either A or B - they're not "like" A or B. That's an important distinction. Because the law is all about definition and legal theories. Very precise and often tortuously complex legal definitions and theories.

wraith808:
On the issue of delivering a physical product we should be very careful if we are willing to let kickstarter (or anybody else) off the hook. Dangerous path here.
-rgdot (May 06, 2014, 05:00 PM)
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But kickstarter isn't delivering a physical product.  The campaign organizer is.  And should be held to some sort of accountability.  Especially if he just disappeared.
-wraith808 (May 06, 2014, 05:10 PM)
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Ceding accountability anywhere in the supply chain is a slippery slope that will be exploited, if not by kickstarter then by another.
-rgdot (May 06, 2014, 05:35 PM)
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How is kickstarter part of the supply chain?
-wraith808 (May 06, 2014, 05:59 PM)
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How do you not consider it? By that logic you can never complain to ebay
-rgdot (May 06, 2014, 08:39 PM)
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There are several kickstarters where there is nothing to be delivered.  Where is the supply chain?  A supply chain in general is when you order something for funds- the chain from the point of manufacture to the point of delivery is the supply chain.  Note that the point of sale is *not* included in a supply chain.  The primary function of SCM, then is to facilitate the most efficient manner of delivering product from the manufacturer to the end user.  No supply chain has been created until there is a product that is to be shipped.  Ergo, Kickstarter is not a part of that chain.

So can Kickstarter itself get into trouble over any of this? It's a definite possibility although the state attorneys don't seem to be interested in pursuing that argument right now. And I'm guessing they won't in this particular case because it would seem a bit of a stretch for them to go after Kickstarter. And I think most people would see it that way too.
-40hz (May 06, 2014, 09:30 PM)
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You can be taken to court over anything or nothing, and what comes out is based in large part on the skill and connections of the lawyers involved and the particular judge that is assigned the case.  So yes, they could be taken to court.  But the interpretation of that particular case is still very much in the air.   Which is more the reason that I think that they are not in any crosshairs right now- to get the case against the actual perpetrator would be the first step even if they were going to pursue anything against Kickstarter- in order to build precedent and not overreach.

All of that said, I still find it a tenuous link.  And your statement about the fact that they filter content?  Billboards do the same.  In fact any advertisement channel does.

Note: the law doesn't deal in analogies. Things aren't "like" something when it comes to legal reasoning. Things "are" either A or B - they're not "like" A or B. That's an important distinction. Because the law is all about definition and legal theories.
-40hz (May 06, 2014, 09:30 PM)
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This is not something that I don't know.  Perhaps we are looking at specious in a different light.  When I say specious, I mean something that on the surface appears to be fair, but isn't.  The legalities of the same don't enter into that equation.

rgdot:
^ I did mention 'physical product' in my first post in this thread, whether or not physical product is the exception or the rule for kickstarter is not really relevant.
As far as supply chain goes I, personally, do want every point from manufacturer to the end platform provider/seller/etc to be somewhat responsible for the physical product delivered to me. I would expect that from third part sellers on Amazon, ebay ... the same way I would expect it from brick and mortar places. Example: The car dealer has nothing to do with creating the car (car dealerships are not owned by the car manufacturer anywhere I have lived...) but I am not taking back my car to Toyota HQ but to the dealer.

40hz:
I think it may be a good idea to remind ourselves that no legal action has been taken - or is even being contemplated - against Kickstarter itself by the Washington AG's office.

The AG's filing has only named the person(s) responsible for the Asylum playing card campaign in the complaint.

 :)

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