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.
This is retroactive. The license is accepted via the Unity engine. The games include a Unity runtime and this fee applies to new copies of all existing games. How is this not retroactive? The games were bundled with the runtime in the past. Plus the new license applies to all previous versions of the Unity engine that have already been installed. This is 100% retroactive.
They say that the new licence does not apply to existing installs. However, those installs are counted for determining if you cross the new sales threshold. That is a prospective change.
You're complaining that the licence for runtime instances should be locked to the one that was in existence when you wrote the game (using the editor). This is entirely reasonable, but not a right you have under the old or the new licence. They could change it again!
https://forum.unity.com/threads/unity-plan-pricing-and-packa...
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.