I don't think what you describe is the case. My company works with Unity and is not worried about any change until the license runs out.
Only then will we form a new contract and accept the new terms and conditions.
Changing a contract one-sided is not really legal in the EU
https://europa.eu/youreurope/business/dealing-with-customers...
What they described is exactly the case. Hence the controversy. Your company should be worried because these ToS changes have been applied retroactively. I agree with you that this is not legal but that is what's happening. Check Unity's own FAQ:
Q: Are these fees going to apply to games that have been out for years already? If you met the threshold 2 years ago, you'll start owing for any installs monthly from January, no? (in theory). It says they'll use previous installs to determine threshold eligibility & then you'll start owing them for the new ones.
A: Yes, assuming the game is eligible and distributing the Unity Runtime then runtime fees will apply. We look at a game's lifetime installs to determine eligibility for the runtime fee. Then we bill the runtime fee based on all new installs that occur after January 1, 2024.
Unfortunately, the Unity contract most developers signed ("Terms of Service" I think they call it) allow for them to change things when they feel like it.
This retroactive change is one of the things which people are very unhappy about.
Some more info here, under the "ToS Update" heading:
That being said, multiple people seem to have different interpretations of it. And Unity has reportedly said they'll be walking back at least some of the changes due to the very public outcry.
It isn't retroactive -- that would mean that they could charge you more for games you sold previously. I'm not sure I would call it retrospective either, as it doesn't change the conditions for existing licences, because you already agreed to their ability to change the price when you first agreed to the licence. Many people were unwise in agreeing to this contract.
You would be able to argue that their various statements over the years have applied constraints on what those changes could be, but I think it is clear they could increase the price. Changing the transition from $0 to non-$0 probably wouldn't stand in many jurisdictions, and they seem to already been walking that back.
Q: Are these fees going to apply to games that have been out for years already? If you met the threshold 2 years ago, you'll start owing for any installs monthly from January, no? (in theory). It says they'll use previous installs to determine threshold eligibility & then you'll start owing them for the new ones.
A: Yes, assuming the game is eligible and distributing the Unity Runtime then runtime fees will apply. We look at a game's lifetime installs to determine eligibility for the runtime fee. Then we bill the runtime fee based on all new installs that occur after January 1, 2024.
It isn't. Look at the words you quote: "Then we bill the runtime fee based on all new installs that occur after January 1, 2024." The new installs are new instances of the Unity runtime.
I'm really sorry they are screwing you but words have meanings, and this is not retroactive. One legal scholar writes:
"A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted."
And of course retroactive and retrospective changes cannot be made to contracts (vs law) without the agreement of parties, or a court decision. Unity is saying you have already agreed to these terms for existing licences, and must agree to new terms for new runtime licences. Something you can dispute in court, but not without significant financial risk.
They used to have a clause that you could use the old terms of service from when you published your game. But it was removed in favor of even games developed under those terms of services needing to pay. That is very much a retroactive change.
I still don't see how that is retroactive. The TOS changed, but I only accepted the TOS how they were when I paid my license. So the new TOS do not apply until my contract ends. That is the law (at least here in Europe)
Because it's not software you can (reasonably) swap out later. Once you've developed your product, it's part of your deliverable. It's like a company changing terms on their engine once you've already built a car around it, and sold them to someone.
> The plus side from this will hopefully be people reading contracts more closely before basing their income stream on it.
I thought the point of all this was that they changed the license. So you sign a license to use the product and spent time and money to develop your product... then they change the license so it's no longer profitable for you to sell it.
So I guess the only reasonable solution to prevent that type of thing is for the license to include wording that you have the right to continue to license it under the same conditions (and presumably price limited) perpetually.
You got it. But I'd go further -- what use is thousands of dollars in engine-specific assets for an unmaintained engine version? You should have the right to use new releases of the engine with the existing licence, and maintain feature parity and get security and bug fixes.
I'm sure someone at Unreal is working on asset conversation and API shims to allow porting Unity games, but it's a big change and costly for the developer.
When does the contract end for someone who started selling their game in June 2023? If it is January 2024, then I don't see how a change to the contract starting on that date would be illegal. If it is June 2024, then I could see how it could be illegal.
Except that here they will not do something to you like a murderer.
They might ask you to pay money. But if you refuse I believe they will at most sue you for the money and then lose if it was illegal.
Can you afford to pay the legal fees to prove that it's illegal, even as Unity continues to drag out the fight with procedural motions, appeals, etc?
Can you afford to bet on winning?
It really shouldn't be this way, and I hope that we will see a time when "that's illegal" means that a company like Unity wouldn't even consider doing it. But as things stand, something like this is often only illegal in practice when it's done by people without the resources to fight lengthy legal battles.
Now, they will be charged, despite not changing the unity version, as if next year. Retroactively applying the new contract terms to the old one.