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snarpFrom a paralegal who knows something about confidential settlements in general, and nothing about the Hiveswap one in specific.
(I would appreciate it if any lawyers reading this correct me if I said anything fucked up.)
Q: Why could WP only comment via Kickstarter? That sounds skeevy.
A: I'm putting this up top because I've seen someone say it already, and I just wanted to say: There's a good reason for that.
I don't consider the reason a skeevy one on WP's side. More skeevy on the side of American Civil Law In General As It Is Currently Practiced (which is in fact very skeevy in a lot of ways!).
I'll get to that once I've gone over the basics.
Q: Is there going to be a trial?
A: No.
This was an out-of-court confidential settlement which is, from the sound of things already very much final. The legal process finished up offstage before we found out about it. Which is very common! Particularly in disagreements between two companies in which none of the damage was physical or visible out in public.
Q: Is there anything we can do?
A: Buy the game when it comes out, buy some merchandise in the meantime?
There is nothing that the Homestuck fandom in general, or (at least to my knowledge) the Kickstarter backers in specific can do about the legal situation.
Q: Why would What Pumpkin agree to settle something confidentially out-of-court unless they were hiding something?
A: People do that for a lot of reasons, but most commonly because - and this is something that's really unfair and that people argue about all the time - if you actually want to get any of your losses back within a reasonable time-frame, and you are not a massive corporation, it is your only option.
Going to trial takes time. It can take many years, especially if it's appealed. There's a case I worked on that was still ongoing after ten years, and no one had gotten any money. If you need money quickly (to pay your rent, or to make your crowdfunded video game that's already past its intended release date, or whatever), you will probably have to settle, even if you were 100% in the right and the other guy's employees were literally caught on film dumping those [toxic materials] into your [thing].
(I am describing an actual case I worked on there.)
Even if What Pumpkin did absolutely nothing wrong, and even if they won both at trial and on any eventual appeals, they would probably have not gotten all of the Kickstarter money back. As the plaintiff in a civil suit, your lawyer will generally get a cut of any money you recover, and their expense charges will generally get higher the longer the case goes on.
You may not recover all your losses even if you win, because the jury decides to only give you 50% or whatever - maybe they doesn't understand what's going on, or your lawyer doesn't understand what's going on or doesn't care, or they like your face less than the other guy's, or they just know that your webcomic's got Gay Stuff in it and don't appreciate that.
Orrrrrr you may not recover anything because you lost, or the other guy has declared bankruptcy because he's spent all the money being genuinely stupid (very common) or hidden it all in some other ostensibly-separate company you can't touch due to horseshit technicalities (actually not quite as common, in my experience!).
Most of the large-scale lawsuits I worked on were settled out of court for the first reason - the people who had lost the money had suffered extremely damaging financial losses, knew that a court battle would take years and might not pay off, and gritted their teeth and took a small guaranteed payout over a larger gamble.
Even if What Pumpkin could have asked a magical item of some sort whether and found out that they'd definitely get a full recover of their money in 2-3 years (unlikely), I'm guessing that they couldn't risk putting off the game long enough to go through the process of going to trial (which would itself take up a lot of their time and financial resources).
In the interim their audience might lose interest, feel betrayed by the delay, feel betrayed by the Vriska/Meenah breakup, move on to other franchises involving gay aliens with weird reproductive processes, and so on.
Companies that habitually screw people over and the lawyers who represent them know what the plaintiff (the screwed-over party) is thinking and know that they can get away with this sort of crap. You just have to wait for the person you harmed to bleed out a little, and they'll no longer be able to fight with you. It happens probably a hundred times every day in the US.
Yeah, this is obviously not fair, but it's the American legal system! Whee. Fucking whee.
(To put the Hivebent situation in perspective, and explain why I'm being flippant about this: In one case I dealt with, a bunch of broke elderly people lost their residences and all of their possessions, and got less than 40% of the value of their losses back. The corporation that had caused the damage could easily have given them five times that - we're talking a very large corporation - but they didn't have to. Some of these individuals were their former employees.
None of the victims could afford to wait and gamble for a win. Before the settlement came, some were already dead of preventable medical crises they couldn't afford to get treated.
You want to get mad about being potentially cheated out of a video game, maybe give some thought to the state of the American legal system as a whole, is what I'm saying. This happens constantly, to people much more vulnerable and projects much more important.)
Q: Okay, but why was it a confidential settlement?
A: Because the defendant insisted upon that as a condition of the payout. This is normal.
Q: Why could WP talk about it over Kickstarter, then?
A: I can't totally answer this without knowing what the settlement said, which obviously I do not. And I'm not familiar with any legal precedent for the situation - I'm not sure there is any! Which is part of the problem WP was facing here.
I'm only guessing, but there was probbbbbbably some Kickstarter-backer-specific language in the agreement like "you can only tell this to donors, and they have to ask for the information first, and they also have to keep confidentiality" or maybe even "you can only tell this donors of a certain tier and above, and [etc]." Kickstarter itself may have had some role stipulated in terms of disclosure, even? I don't know! Crowdfunding law is fucked up.
If there hadn't been such language, it would have been an unbelievably messy legal area, to my understanding. Like:
* WhatPumpkin arguably could not have talked about it even with the Kickstarter backers, or even admitted to them (or anyone else) that the settlement had happened, without being in breach of settlement. But if it ever accidentally became public, they could be pretty sure that at least one Kickstarter backer would sue them for breach of fiscal something-something, I don't know what term I'm looking for here.
* Or WhatPumpkin arguably were required to inform all of the Kickstarter backers, and have been negligent by not doing so. But if they'd taken that interpretation, TOG would have immediately accused them of being in breach of the agreement, and the lawyers would be back out.
So, yeah. This would obviously put WP in an awful legal position, where they're in potential trouble no matter what they do. Like I said, crowdfunding law in the US is some scary wild-west nullsec bullshit.
So, y'know, I hope that there was in fact some language covering the situation in there, because otherwise shit's about to get ugly, laws-ways. It may be anyway!
Q: So should IPGD not have made that post?
A: They were probably not supposed to have done that, no. It was going to come out sooner or later, though. I hope it doesn't get them or WP in any trouble. It might.
-
And that's all I can think of to say right now? Lawyers: please let me know if I fucked anything up here.
Everyone else: Uh, you can ask questions here, but I cannot promise I will have the ability to answer them? I'm just a paralegal, and my experience with civil law has relatively little overlap with this situation.
(I would appreciate it if any lawyers reading this correct me if I said anything fucked up.)
Q: Why could WP only comment via Kickstarter? That sounds skeevy.
A: I'm putting this up top because I've seen someone say it already, and I just wanted to say: There's a good reason for that.
I don't consider the reason a skeevy one on WP's side. More skeevy on the side of American Civil Law In General As It Is Currently Practiced (which is in fact very skeevy in a lot of ways!).
I'll get to that once I've gone over the basics.
Q: Is there going to be a trial?
A: No.
This was an out-of-court confidential settlement which is, from the sound of things already very much final. The legal process finished up offstage before we found out about it. Which is very common! Particularly in disagreements between two companies in which none of the damage was physical or visible out in public.
Q: Is there anything we can do?
A: Buy the game when it comes out, buy some merchandise in the meantime?
There is nothing that the Homestuck fandom in general, or (at least to my knowledge) the Kickstarter backers in specific can do about the legal situation.
Q: Why would What Pumpkin agree to settle something confidentially out-of-court unless they were hiding something?
A: People do that for a lot of reasons, but most commonly because - and this is something that's really unfair and that people argue about all the time - if you actually want to get any of your losses back within a reasonable time-frame, and you are not a massive corporation, it is your only option.
Going to trial takes time. It can take many years, especially if it's appealed. There's a case I worked on that was still ongoing after ten years, and no one had gotten any money. If you need money quickly (to pay your rent, or to make your crowdfunded video game that's already past its intended release date, or whatever), you will probably have to settle, even if you were 100% in the right and the other guy's employees were literally caught on film dumping those [toxic materials] into your [thing].
(I am describing an actual case I worked on there.)
Even if What Pumpkin did absolutely nothing wrong, and even if they won both at trial and on any eventual appeals, they would probably have not gotten all of the Kickstarter money back. As the plaintiff in a civil suit, your lawyer will generally get a cut of any money you recover, and their expense charges will generally get higher the longer the case goes on.
You may not recover all your losses even if you win, because the jury decides to only give you 50% or whatever - maybe they doesn't understand what's going on, or your lawyer doesn't understand what's going on or doesn't care, or they like your face less than the other guy's, or they just know that your webcomic's got Gay Stuff in it and don't appreciate that.
Orrrrrr you may not recover anything because you lost, or the other guy has declared bankruptcy because he's spent all the money being genuinely stupid (very common) or hidden it all in some other ostensibly-separate company you can't touch due to horseshit technicalities (actually not quite as common, in my experience!).
Most of the large-scale lawsuits I worked on were settled out of court for the first reason - the people who had lost the money had suffered extremely damaging financial losses, knew that a court battle would take years and might not pay off, and gritted their teeth and took a small guaranteed payout over a larger gamble.
Even if What Pumpkin could have asked a magical item of some sort whether and found out that they'd definitely get a full recover of their money in 2-3 years (unlikely), I'm guessing that they couldn't risk putting off the game long enough to go through the process of going to trial (which would itself take up a lot of their time and financial resources).
In the interim their audience might lose interest, feel betrayed by the delay, feel betrayed by the Vriska/Meenah breakup, move on to other franchises involving gay aliens with weird reproductive processes, and so on.
Companies that habitually screw people over and the lawyers who represent them know what the plaintiff (the screwed-over party) is thinking and know that they can get away with this sort of crap. You just have to wait for the person you harmed to bleed out a little, and they'll no longer be able to fight with you. It happens probably a hundred times every day in the US.
Yeah, this is obviously not fair, but it's the American legal system! Whee. Fucking whee.
(To put the Hivebent situation in perspective, and explain why I'm being flippant about this: In one case I dealt with, a bunch of broke elderly people lost their residences and all of their possessions, and got less than 40% of the value of their losses back. The corporation that had caused the damage could easily have given them five times that - we're talking a very large corporation - but they didn't have to. Some of these individuals were their former employees.
None of the victims could afford to wait and gamble for a win. Before the settlement came, some were already dead of preventable medical crises they couldn't afford to get treated.
You want to get mad about being potentially cheated out of a video game, maybe give some thought to the state of the American legal system as a whole, is what I'm saying. This happens constantly, to people much more vulnerable and projects much more important.)
Q: Okay, but why was it a confidential settlement?
A: Because the defendant insisted upon that as a condition of the payout. This is normal.
Q: Why could WP talk about it over Kickstarter, then?
A: I can't totally answer this without knowing what the settlement said, which obviously I do not. And I'm not familiar with any legal precedent for the situation - I'm not sure there is any! Which is part of the problem WP was facing here.
I'm only guessing, but there was probbbbbbably some Kickstarter-backer-specific language in the agreement like "you can only tell this to donors, and they have to ask for the information first, and they also have to keep confidentiality" or maybe even "you can only tell this donors of a certain tier and above, and [etc]." Kickstarter itself may have had some role stipulated in terms of disclosure, even? I don't know! Crowdfunding law is fucked up.
If there hadn't been such language, it would have been an unbelievably messy legal area, to my understanding. Like:
* WhatPumpkin arguably could not have talked about it even with the Kickstarter backers, or even admitted to them (or anyone else) that the settlement had happened, without being in breach of settlement. But if it ever accidentally became public, they could be pretty sure that at least one Kickstarter backer would sue them for breach of fiscal something-something, I don't know what term I'm looking for here.
* Or WhatPumpkin arguably were required to inform all of the Kickstarter backers, and have been negligent by not doing so. But if they'd taken that interpretation, TOG would have immediately accused them of being in breach of the agreement, and the lawyers would be back out.
So, yeah. This would obviously put WP in an awful legal position, where they're in potential trouble no matter what they do. Like I said, crowdfunding law in the US is some scary wild-west nullsec bullshit.
So, y'know, I hope that there was in fact some language covering the situation in there, because otherwise shit's about to get ugly, laws-ways. It may be anyway!
Q: So should IPGD not have made that post?
A: They were probably not supposed to have done that, no. It was going to come out sooner or later, though. I hope it doesn't get them or WP in any trouble. It might.
-
And that's all I can think of to say right now? Lawyers: please let me know if I fucked anything up here.
Everyone else: Uh, you can ask questions here, but I cannot promise I will have the ability to answer them? I'm just a paralegal, and my experience with civil law has relatively little overlap with this situation.
