The Legalities of Unity’s Runtime Fee

The ongoing saga of Unity’s proposed runtime fee continues to raise questions about the company’s ability to make such a change to its terms of service. Many wonder if Unity has the legal authority to introduce fees for users who are deeply embedded in and reliant on its software.

Unity’s proposal to charge a small fee, around $0.20, for every install has sparked outrage among developers with millions of installs. The lack of clarity regarding how installs will be tracked, the absence of consultation, and the retroactive application of these terms have ignited a frenzy among developers.

The Legality Question

Legal firm Wiggin LLP has weighed in on the legality of Unity’s changes. In an article by Peter Lewin and India Atkin on their website, the firm provides key recommendations for studios and shares its views on the situation.

One significant concern that Lewin and Atkin address is the enforceability of Unity’s changes. They note that while it’s common for software-as-a-service (SaaS) companies to update their terms unilaterally, this right is not legally absolute in all jurisdictions, particularly in business-to-business (B2B) arrangements. Under UK law, for example, a clause in a service provider’s terms of business that deviates significantly from what is expected may need to pass a “reasonableness” test to be enforceable. The sudden shift and lack of prior notice surrounding Unity’s changes are likely to be points of contention.

Another complicating factor is that Unity’s terms are governed by Californian law and mandatory arbitration. Furthermore, while Unity has announced the new fee structure, it has not yet updated its license terms, leading some businesses to consider potential class action lawsuits in the US due to these concerns.

The Issue of Install Tracking

In addition to the legal concerns, developers have expressed significant worry about install tracking. Many fear that tracking could violate GDPR and other privacy laws, and there are doubts about how the tracking would even work in practice.

The fact that legal professionals are also troubled by the application of Unity’s new terms-of-service is not a promising sign. Despite Unity’s recent response to developer frustration and their unofficial mention of potential solutions, the introduction of these fees may have already caused irreversible damage.

Furthermore, Unity has demonstrated that it can attempt to introduce new fees to developers who are heavily reliant on their platform, raising concerns about the possibility of future fee changes. As a result, some Unity developers are seriously considering migrating to other platforms.

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