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Unity's Runtime Fee: Is it even legal?

Top legal companies have offered their thoughts on Unity's unpopular introduction of its proposed Runtime Fee
Unity's Runtime Fee: Is it even legal?
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The Unity saga rumbles on, and as we wait for the resolution of their tentatively announced reconsideration, questions are being asked as to whether Unity - via its agreed terms of service - can even make such a change to fees for users so embedded and committed to using its software.

Unity have proposed the introduction of a small fee for every install, around $0.20. Small, yes, but quickly building up for companies with installs in the millions. Add to that confusion as to how installs would be tracked, fury at lack of consultation and incensement at the retroactive application of these terms and you have a perfect storm that's whipped developers into a frenzy.

To that end, legal firm Wiggin LLP have offered up their thoughts on the legality of Unity’s changes. In an article written by Peter Lewin and India Atkin for their site the firm breaks down some key recommendations for studios as well as their views on the whole situation.

The most significant breakdown that Lewin and Atkin offer is in the specific legality of Unity’s moves. “There [is concern] over the enforceability of Unity’s changes,” they suggest. “On the whole, it’s not uncommon for SaaS companies to unilaterally update their terms, which users are deemed to agree to by continuing to use the product. This is usually explicitly permitted in their terms of service. However, this right isn’t legally absolute (at least in some jurisdictions), even in B2B arrangements.

“For example, under UK law, if a clause in a service provider’s standard terms of business permits them to provide a contractual performance substantially different from what is expected, that clause would only be enforceable if it passed a ‘reasonableness’ test. We expect that the significance of the shift, and relatively little prior notice, would likely be core grounds of contention.

“One additional complicating factor here is that Unity’s terms are governed by Californian law and mandatory arbitration. Also, while Unity has announced the new fee structure, it hasn’t actually updated its license terms yet as far as we can tell. Various reports suggest some businesses are even considering potential class action lawsuits in the US due to these concerns.”

Tracks of my tears

In addition to the concerns outlined by Lewin and Atkin above, the issue of install tracking has been a primary point of contention amongst developers.

Many fear any tracking would put them in violation of GDPR or other privacy laws, while some expressed skepticism as to how it would function in the first place. 

It’s not a good sign when there’s concern amongst legal professionals as to the application of new terms-of-service. And while it’s more than likely Wiggin have only stepped in to offer their services, the ambiguity around the introduction of these fees is demonstrated in their breakdown. Potential solutions, such as a rumoured self-reporting installs to Unity, have not yet officially been offered or rolled out.

While it does seem there’s a glimmer of hope for worried developers now that Unity have addressed the outpouring of frustration from developers and at least unofficially floated some potential solutions, it may be that the damage is done.

And, after showing that they can attempt to introduce new fees to developers 'locked in' to the platform, they may do so again in the future. Such a possibility has already got some Unity developers seriously considering a move to other platforms.

Photo by Tingey Injury Law Firm on Unsplash