Like SleepingDog mentioned, this is a civil case, and the question of theft doesn't really enter into it - that was just the choice of words the judge pulled out in his summary. I think the question is when does a court consider that a delay has become a failure to deliver - they will eventually draw a line.
For Star Citzen, they have a couple of problems (I should add, I don't have a problem with them, but legal proceedings have already started.). For starters, you have to be very careful when putting together a contract, because if the court deems the terms to be unreasonable, or violating stautory rights, they will strike it down.
Also, in their contract, they have two mutually contradictory terms:
That 12 months before refund claims will be up in November. But another clause says:
This contradicts the idea of a 12 month deadline before refunds, and essentially says that you have no claim if they fail to deliver what you paid for. When you have a contradiction in a contract, the terms most favourable to the party that did not draft it are enforced. Also, the idea of a contract that says they may never deliver what you paid for is very unlikely to stand up, in general.
The Altius case was based on a breach of contract of the Kickstarter TOS. It's based on Altius failing to tell backers there was going to be a delay and why (which is apparently deceiving trade practices). It's mentioned in the "filed suit against" link.
As for the CIG TOS, that's not a contradiction (one is about delays and the other about running out of funds) and both of these are in the KS TOS might I add just with less legal-speak. I suspect both of these are very commons TOS entries in trading contracts.
And there is no lawsuit in the work, Derek Smart is in no legal position to demand anything from CIG, he was refunded. And outside of him, I haven't seen any backers interested in starting one…
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