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[ZeroGravitas]

You're very confidently assuming facts not even vaguely in evidence.

IIRC, he claimed he had a fully implemented engine. An engine is not necessarily (or even generally) a game;

you don't recall correctly.

he explicitly said "We have a working game that we will complete and deliver in a timely fashion."

So apparently lot being able to live up to your promises is the same as deliberate deception. Okay.

it's true, distinguishing mere breach of promise from fraud is a classic problem in law.

typically the elements of fraud are something like:

 (1.) that the defendant made a representation,
 (2.) as to a material fact,
 (3.) which was false,
 (4.) and known to be false by the defendant,
 (5.) that the representation was made for the purpose of inducing the other party to rely upon it,
 (6.) that the other party rightfully did so rely,
 (7.) in ignorance of its falsity
 (8.) to his injury

so the prima facie case for fraud here is something like, "Josh said there was already a working game (obviously material to the subject of if a game would ever be finished), and told all sorts of additional stories about things he had done this game, and there wasn't, and he hadn't. Josh knew there was no such game and that he had obviously never played this nonexistent game, yet he made all these false statements for the purpose of convincing people to back the KS. Maybe he intended to eventually make the game, but in September 2014, he knew he hadn't. Backers were within their rights to take these statements at face value, and certainly had no idea they were false. As a result they backed the KS and lost money."

There's nothing on its face unreasonable about this; it sets out the prima facie case for fraud, and all of the specifics that could be within the knowledge of the plaintiff at the outset of the suit.

[ZeroGravitas]

If you wanna "get all legal scholarship" on us all, you might wanna be a bit more accurate. Not all jurisdictions settle for preponderance of evidence as the standard for civil fraud cases, even in the US. The venue matters quite a lot.

True, I mostly handled fraud cases in federal bankruptcy court, where the burden is preponderance of the evidence. Grogan v. Garner, 498 U.S. 279 (1991).

And even if someone were to file suit, software development is a whole lot fuzzier than the straightforward engineering KS suits cited above. What constitutes a "fully implemented engine" for an under-specified project can and would be a matter of serious (and not perforce bad faith) dispute.

nothing relies on the "fully implemented engine" line.

[ChairmanPoo]

We have a full time coder and all the major game systems and are in place and successfully implemented.  We do not, however, have an in house artist - so we'd be using your funds primarily to cover graphic updates, and animation.

Combined we have not just the critically important design and development experience to create a game of this scope, we also have the discipline to properly budget and execute in an efficient and timely manner.  Mix that with the overwhelming passion we both have for creating innovative, fun games and we like to think you have a recipe for success

By waiting until we have a fully functional and working game engine we feel like we successfully mitigated the most common risks that many games on Kickstarter face. We have a working game that we will complete and deliver in a timely fashion.

just quoting interesting tidbits from the KS. Of note: he's claiming that A: he has a working game and B: he just needs to buy art assets.

[USEC_OFFICER]

Working game does not mean being close to finished or that it only needs art assets. It means that they have the underlying structure completed and need to fill it out with additional content, which is why a quarter of their budget was laid out for further programming and development. Development which could have easily shown that their game did not work as well as they thought it did. The stretchgoals they reached also meant that this underlying structure needed to be redeveloped to accommodate them, which obviously required much more development time than anticipated.

The kickstarter does have trouble differentiating between 'What is' and 'What will be' though. I think this is mostly due to inexperience. That and the fact that they didn't anticipate people would be closely analyzing their choice of words in the future to determine fraud.

[bloop_bleep]

And everyone proceeded to simply ignore some of the points I made in my post.

Also, there might be some additional circumstances that are unknown to us that may explain why the developer didn't release the prototype of the game, since I agree with Damiac that not doing so while being under such intense pressure seems very strange, if he indeed does have the prototype. But what if he had it before, but doesn't any longer? What if he could get into trouble if he released the prototype? Somehow I feel this is somewhat related to his business partner leaving. Perhaps they were brought some code or other assets into the game, which they licensed to the developer, but when they left they terminated the license. That would mean that either the developer has to release the game with the no-longer-licensed assets and face legal retribution, or has to somehow replace those assets in order for the game to work. Maybe that's what he was doing this entire time.

This is obviously just one possibility of many that would explain the absence of the game. Or, of course, it could be a fraud after all.

This is one of the big problems with this discussion -- everyone routinely forgets the other side's arguments, causing us to repeat the same thing over, and over, and over again. I think if we all just took stock and listed out all our arguments from the beginning of the conversation in order, with no repetitions, this discussion would have much more value.

I'll go first:

• The developer claimed he had a working prototype of this game, from the very beginning. This can be proven from public records and so is something we should all agree on.
• The developer has failed to produce anything of value, not even the working prototype he said he had, despite extreme pressure from his backers and the FTC. Also a given fact.
• This is evidence to the fact he did not in fact have the prototype, except if some additional factor (like the one I outlined above) is preventing him from releasing it.
• If he did not actually have the prototype when he launched his Kickstarter, then he would have committed fraud, since he would have released misleading information that affected the decisions of his backers.

[ZeroGravitas]

Working game does not mean being close to finished or that it only needs art assets. It means that they have the underlying structure completed and need to fill it out with additional content, which is why a quarter of their budget was laid out for further programming and development. Development which could have easily shown that their game did not work as well as they thought it did. The stretchgoals they reached also meant that this underlying structure needed to be redeveloped to accommodate them, which obviously required much more development time than anticipated.

Except that he also outright said, "all the major game systems and are in place and successfully implemented."

The kickstarter does have trouble differentiating between 'What is' and 'What will be' though. I think this is mostly due to inexperience. That and the fact that they didn't anticipate people would be closely analyzing their choice of words in the future to determine fraud.

lol, yes, he's such an inexperienced programmer and project manager that he doesn't know if it's true or not when he says things like "we have a working game" and "all the major game systems and are in place and successfully implemented."

[USEC_OFFICER]

Major systems. Not all systems and not all of the content that makes a game a game.

Let me put it this way. A working game would be a beta build of the Source engine with a collection of test maps and half-finished locations. This build has all of the major systems in place. It has maps to move around in, enemies to shoot and kill, damage you can suffer from, items to collect and so on. It should be obvious that this is not close to being a finished product like Half-Life 2. You can do the same things in both of them, but the beta build still needs further development before it can be released. This isn't even considering any issues or bugs that could be encountered or systems discarded near the end of development for being unfun.

[Retropunch]

I'd suggest instead of endless arguments, that those who are so convinced they've got him dead to rights on fraud should go and bring a law suite. It seems like you believe it's an easy win, so I'd suggest you do it and get your money back/the money of others back.

[ZeroGravitas]

Major systems. Not all systems and not all of the content that makes a game a game.

Let me put it this way. A working game would be a beta build of the Source engine with a collection of test maps and half-finished locations. This build has all of the major systems in place. It has maps to move around in, enemies to shoot and kill, damage you can suffer from, items to collect and so on. It should be obvious that this is not close to being a finished product like Half-Life 2. You can do the same things in both of them, but the beta build still needs further development before it can be released. This isn't even considering any issues or bugs that could be encountered or systems discarded near the end of development for being unfun.

absolutely agreed! so then 300+ beta backers should have seen this beta. either then or in the 3.5 years since.

but they didn't. so it would be reasonable to infer that the product never existed, even in an unfinished beta or pre-beta state.

[USEC_OFFICER]

I don't think it's reasonable to infer that the product ever existed from the fact that it was never released or shown to the backers. Remember that the stretch goals reached required quite a lot of changes to the engine to implement them and Josh is not known for acting professionally or maybe even rationally. I think it's far more likely that he doesn't want to show the backers something that's so far off from what he promised them and would rather show stuff that is more feature-complete for people to 'ooh' and 'aah' over.

[Damiac]

And everyone proceeded to simply ignore some of the points I made in my post.

Also, there might be some additional circumstances that are unknown to us that may explain why the developer didn't release the prototype of the game, since I agree with Damiac that not doing so while being under such intense pressure seems very strange, if he indeed does have the prototype. But what if he had it before, but doesn't any longer? What if he could get into trouble if he released the prototype? Somehow I feel this is somewhat related to his business partner leaving. Perhaps they were brought some code or other assets into the game, which they licensed to the developer, but when they left they terminated the license. That would mean that either the developer has to release the game with the no-longer-licensed assets and face legal retribution, or has to somehow replace those assets in order for the game to work. Maybe that's what he was doing this entire time.

This is obviously just one possibility of many that would explain the absence of the game. Or, of course, it could be a fraud after all.

This is one of the big problems with this discussion -- everyone routinely forgets the other side's arguments, causing us to repeat the same thing over, and over, and over again. I think if we all just took stock and listed out all our arguments from the beginning of the conversation in order, with no repetitions, this discussion would have much more value.

I'll go first:

• The developer claimed he had a working prototype of this game, from the very beginning. This can be proven from public records and so is something we should all agree on.
• The developer has failed to produce anything of value, not even the working prototype he said he had, despite extreme pressure from his backers and the FTC. Also a given fact.
• This is evidence to the fact he did not in fact have the prototype, except if some additional factor (like the one I outlined above) is preventing him from releasing it.
• If he did not actually have the prototype when he launched his Kickstarter, then he would have committed fraud, since he would have released misleading information that affected the decisions of his backers.

As to your first part, I'd say if there are special weird circumstances preventing him from releasing said working game, the simple solution would be to just come out and say that.  If the prototype was someone else's, then I don't think he had any right to claim he had a working game. 

But yeah, I'd say you've distilled it down pretty well.

Usec, what you're saying reminds me a lot of a situation I got into when I was younger.  Being stupid and naive, when a friend asked to borrow $1000 from me to put down as first/last month rent, I agreed, since he agreed to pay me back within 3 months.
3 months came and went, I received nothing.  When I talked to him about it, he always said he was saving it up, and he wanted to pay me back all at once.  I asked if he could just send me $50 a week or something, and he always said no, I want to pay it all back at once.

I think it's obvious, but I never did get that money back.  One possibility is my friend just really weirdly wanted to pay a lump sum and nothing less. The other possibility is he made whatever excuses came to mind to get me off his back.  You're saying maybe Josh isn't giving us that 50 bucks because he wants to save up all 1000, but I'm saying he's not giving us that 50 bucks because he doesn't have it, and he's never going to have 1000.  If he's worried about disappointing the backers... this is a very strange way to avoid that.  Look at the kickstarter comments, there's plenty of disappointed backers (And plenty of people calling it fraud too).

[USEC_OFFICER]

Except your friend didn't occasionally remind you he owned you money by waving a bunch of bills in front of your face and commenting on how he was slowly collecting it. Josh has certainly acting strange and handling this situation worse than he should but he hasn't been completely hiding either. This entire discussion was prompted by a video he suddenly made detailing his development on the game, 3.5 years after the kickstarter. If he was like your friend then he would have never brought the fact up himself. It would draw too much attention to it.

For the record, I'm not defending Josh's behaviour afterwards or saying that he isn't completely in over his head. His actions are certainly something no developer should emulate. I just think that when he made the kickstarter he had a prototype which he believed he could make into a finished game in time. It's not fraud to have your predictions turn out false. Just shitty all around.

[Damiac]

I just think that when he made the kickstarter he had a prototype which he believed he could make into a finished game in time. It's not fraud to have your predictions turn out false. Just shitty all around.

    That Which Sleeps has been in development for over a year and has been entirely self funded up to this point.  We have a stable working game engine and what we feel is a fun and engaging concept, we just lack the art resources to bring the visuals to the next level.

    We have a full time coder and all the major game systems and are in place and successfully implemented.  We do not, however, have an in house artist - so we'd be using your funds primarily to cover graphic updates, and animation.  We think with responsible use of your funds we can overhaul several of the major art assets - including portraits, heros, and agent sprites & animation.

The original text can be found here: https://www.kickstarter.com/projects/kingdinosaurgames/that-which-sleeps/description

We have a stable working game engine

all the major game systems and are in place and successfully implemented

We do not, however, have an in house artist - so we'd be using your funds primarily to cover graphic updates, and animation.  We think with responsible use of your funds we can overhaul several of the major art assets - including portraits, heros, and agent sprites & animation.

Where's the room for "He believed he had a prototype"?  Let the backers have that stable working game engine with the successfully implemented major game systems. All that the funds were primarily needed for artwork.

[USEC_OFFICER]

I did talk about that already. So I'm just going to link my posts instead of repeating myself.

[Damiac]

I did talk about that already. So I'm just going to link my posts instead of repeating myself.

Good point, your eventual conclusion is:

I don't think it's reasonable to infer that the product ever existed from the fact that it was never released or shown to the backers.

I do think it's reasonable to make that inference. People are accusing him of fraud, that would prove it's not fraud. He's not acting in good faith by not reassuring people that he did not in fact commit fraud, when he easily could. It is a very reasonable assumption that the described software doesn't exist.