Okay, stuck in a hotel room on a tiny little screen, so... I'll probably miss some things.
The contract between provider and donor is a classic type of contract. The donors are giving consideration in exchange for something. To claim that isn't a contract is bizarre. Donors don't fund Kickstarter or expect any kind of return from them. They do it with the providers.
The way I see it, there are three effective contracts involved here:
A: Between Peters and Kickstarter (TOS)
B: Between Donor and Kickstarter (TOS)
C: Between Peters and Donor (as mentioned, Kickstarter is not a party to this one).
The first two are (AFAIK) the only ones that mention the requirement to own the IP. I have no doubt that Peters breached (A), presuming that he didn't make other arrangements with KS; I'm not disputing that. But that would be breach of contract, not criminal fraud IMO (and I could easily be wrong here).
The last one (C) is a different beast entirely.
He intentionally used the service when he knew he had no permission from the IP holder and simply pointing to other fan films that were also doing it, as he has done, is not good enough excuse for using Kickstarter in the absence of those permissions in my opinion.
And that would support a breach of contract with KS; but I personally don't think it's relevant to fraud.
And? That doesn't mean he hasn't still breach the KS terms of service. Not all donors will read "campaign documents". They will however all be required to accept the KS terms of service. How many small sum donators do you think read the "campaign documents"?
As you yourself said, not reading it is no excuse.
On a more serious note, though, the question becomes: what are the terms of the contract between Peters and the donor? Since I didn't donate (and have never donated with Kickstarter), I don't have a clear view on this -- but from an outside perspective, I would argue that the "sale contract" is effectively defined by the campaign advertisement. Unless I'm missing something, the TOS is not incorporated into that contract either directly or by reference, thus (A) and (B) are irrelevant from this perspective.
That would mean that, as far as the donor is concerned, the lack of ownership of the IP (and the risk involved) was disclosed. No fraud. Stupidity, yes, but no fraud.
Well, I'd say that the issues we are discussing aren't too much of a problem for the donors because of the contract that exists between them and Peters. They paid him in return for a completed movie. If the litigation makes that impossible then he has failed to fulfil that contract and they are entitled to their money back on the basis of breach.
Now this one is more interesting. While I think he would be hard to pin for fraud, a claim for breach of contract would probably be a different beast. The question is: what does the contract say about the risks? I've always been under the impression that this is the risk of donating with Kickstarter, and what makes it a "donation" instead of a purchase: if delivery doesn't come off, you have no recourse.
If that's the case, then it's possible that the only way donors will truly have recourse is if someone
can make a successful fraud claim; then the contract would essentially have been agreed to under false pretenses, and I would think that would open Peters up to a nasty class action or something, and maybe even criminal proceedings.
I'm with
@jespah on this: I would really like to see more clarity (and probably regulation) around what's legal with crowdfunding. To my logic, "donating for a perk" is equivalent to "making a sale" -- which means you should damn well get what you paid for!
Of course, whether Peters has the money to repay all donors is another matter entirely.......
Two words: Sushi and Damages.
So KS knew even before they started courting AP and Axa (at least they should have known) that the production had no license.
Is that true about KS and Axa?
I seem to recall that when the Indiegogo campaign started it was openly stated that they had courted Axanar, so IGG is almost certainly on the hook there. Did KS court Axanar also? I can't recall if that's the case or not, but I'm thinking not.
