Touhou Smash crowdfunding and ZUN's fancreation rules (discussion thread)

[Tengukami]

I think the question is whether the game can be sold online. The rules regarding that are still in the making, if I remember correctly, and it was already stated that distributing the game as donationware was okay. Also worth mentioning is that there are numerous Touhou fangames all over the internet distributed using that method.

Addendum: if the game is to be sold, the only 100%-legal method would be through physical media distributed at doujin conventions. The alternative would be to offer it for free on a personal hosting service.

The question of where it can be distributed for free as donationware also has guidelines, as per two pages ago:

なので問題点を整理すると
・クラウドファンディングで出資を集めた。(同人活動は非営利が前提)
・同人や東方を知らない人達の集まる場に同人作品を出した。(ガイドライン違反)
・現時点で認められないダウンロード販売を公言した。(ガイドライン違反) この3つでしょうか
So to summarize the problems:
* They used crowdfunding. (Non-commercial is a given for doujin activities)
* They put out a doujin work where there are people who aren't familiar with doujin or Touhou. (guideline violation)
* Announced download sales, which is not currently allowed. (guideline violation) I would say these three.

...

ついでに話すと、今回の事件に対するひとつの解決策としては
1. Indiegogoを中止する
2. 東方ProjectのFANしかいないクローズな場で説明する
3. クローズな場でdonationwareとして無料で公開し募金を募る。
です
And I may as well mention: One solution to this case would be to
1. cancel Indiegogo,
2. provide an explanation in a non-public setting where there are only fans of the Touhou Project,
3. and offer it for free as a donationware in a non-public setting.

Emphasis added for clarity. This goes back to the entire deal of having the online equivalent of distribution within and amongst the Touhou doujin community. Whether it's sold, offered for donations or given for free, the guidelines here seem to be pretty clear with regards to where online distribution takes place.

Again, if this was already clarified then tout va bien, as far as I'm concerned.

[Flandre5carlet]

People who know how: I'd rather wait for a clear written explanation in Japanese, but if this video starts getting attention among Japanese fans on Twitter, please help undo any misunderstanding, possibly by linking to this partial transcript: http://pastebin.com/10tvAKjs

Saijee, I have to stress that it's still extremely important to communicate with Japanese fans to avoid any misunderstanding. Please don't lose the information war again.

06:22
He explained, while Shanghai Alice's copyright term stated that, though it is not technically written in policy, crowdfunding is not recognized as a valid mean to support a project because it is an investment, and those investment methods are not tolerated.

Jeez, that's totally not what the GS-System kickstarter wrote on their kickstarter page or anything, and what was repeated to FSS several times.

Anyway... Most issues seem to be resolved from what I can see; I'm giving Saijee the benefit of the doubt as far as not responding to this thread yet, and hope he will show up soon to respond to the few pages that he has not read.

[aUsernameIsFineToo]

the guidelines here seem to be pretty clear with regards to where online distribution takes place.

That brings up another genuine question: what exactly is a "non-public setting"? If you interpret that last statement in the quote you posted as it is, all fanmade videos on YouTube would be illegal, since YouTube is definitely a public setting where anyone can come upon those videos. With the same regards as that, offering it on a hosting service meant for individuals where only those who are knowledgeable of Touhou and doujin culture would be legal under that same definition.

So as an answer to what is and isn't legal, I'd guess that online distribution is okay ONLY IF it is done through a way that reduces its exposure to non-informed folks. Even so, what exactly constitutes "non-public" remains hazy, especially with the internet.

I don't want to sound like I'm beating a dead horse here, but the topic of this thread really interests me as to how far doujin development and distribution can go while still being respectful and legal.

[Tengukami]

I think YouTube, Nico and Pixiv are a special case, in the sense that nothing is being offered for download really (which is not to say things can't be downloaded from those sites; just that those sites are not specifically for download distribution). Full games or entire albums, though, would be a different story I reckon. Then you have complete derivative works on offer for distribution either for free and/or for donations. That, I think, is where we get into the area of "Touhou doujin community" settings. This is emphasized so that the target audience are familiar with Touhou and know this is not a wholly original work, but a fan product based on the works of ZUN. This was also part of the problem with using IGG here.

I don't think you're beating a dead horse. I think it's important to talk about it, especially as the WTC grows and/or evolves to create more works like this. Simply put, we're talking about the online equivalents of the difference between offering your Touhou doujin product at a booth at a Touhou-related event, or offering it at Walmart. Online distribution for such products, as per the guidelines anyway, places this condition in place in the spirit of the doujin community, is how I understand it.

[aUsernameIsFineToo]

I think we can all agree that IGG was illegal from the beginning. What strikes me as "within legal boundaries" is whether a complete work, be it a game, album, or even fan art can be distributed through digital means. Say I make a Touhou-derived game (with credit to ZUN, of course) and make a thread about it on our RaNGE board. Somewhere in there, I place an obfuscated referral-locked link to the package hosted on my personal file server. That would fulfill the requirements for legal distribution, would it not?

[Moogs Parfait]

I kinda have a suspicion that like the "commercial" vs "corporate" translation thing, there is a difference between offering "online distribution (any downloads)" and "online distribution (publishing via Steam, etc)"  If one of the Japanese speakers could shed some light on this it'd probably help a bunch of people in this thread.

[Helepolis]

I kinda have a suspicion that like the "commercial" vs "corporate" translation thing, there is a difference between offering "online distribution (any downloads)" and "online distribution (publishing via Steam, etc)"  If one of the Japanese speakers could shed some light on this it'd probably help a bunch of people in this thread.

If I am not mistaking, Cuc had explained it here: https://www.shrinemaiden.org/forum/index.php/topic,17884.msg1158129.html#msg1158129 Hope that answers your question, somewhat.


There were though few things by people regarding the crowdfunding cancellation, which was also dropped to me on IRC. I scanned the facebook comments and read more people asking the same thing:

So am I getting this right?
You're going to receive the money from indiegogo and refund it manually. But you are offering the alternative to not refund and the people who do not refund will still get their backer rewards?
Because that's still you using crowdfunding and thus you're still going against what you appear to have agreed on with ZUN and/or his associates.

I'm just wondering about one detail of the video released. You say that people can refuse the reimbursement and retain the perk. How is this any different from the crowdfunding in the first place? If people were willing to donate, they most likely wouldn't take it back and you were clearly told to bring down the crowdfunding. Please explain your reasoning on the matter.

That is actually a good question. If the transcription from Tohosubs is correct: You will ask the people for refund post campaign but doing this on a voluntary base. Technically that means you still collected money through the means of crowdfunding. That is because the money you keep on people's voluntary request doesn't changes this fact.

Technically, you're still breaching the Doujin guidelines. So how does this fit with the cancellation? I am curious.

[aUsernameIsFineToo]

I don't know how IGG works, as I've never heard about it until this thread. Is there some kind of list of donors, along with the amount donated? And how were the donations made? Were they all done through PayPal, or was there the option of direct credit card charging or bank transfer? If it's the former, can't the refunds be processed all at once and end up in the respective donors' accounts? One way or another, the only way this issue can be solved is if it is made such that the crowdfunding campaign never happened, meaning that all contributors get their contributions refunded. If any of them still want to donate, they can certainly do so through one-to-one means such as a PayPal transfer.

[Moogs Parfait]

Helepolis: I think what that's missing is the answer to this question:

"Can I have an online shop for self-published digital downloads of games?" and the follow up question "Do I have to make my own website or can I use a Western equivalent to DLSite?"

I think people are trying to keep from breaking the spirit of the rules while working with what they have available to them.

Services people could be thinking of, off the top of my head: Amazon Marketplace, Mangagamer, maybe Storenvy if it supports downloads.

Maybe NForza will evolve into a doujin distribution center and make everything better.

[aUsernameIsFineToo]

Amazon Marketplace

I'm not too sure about that. Isn't that almost the same thing as distribution through Android Market/Google Play? After all, Amazon competes with them in terms of app sales.

Unless you're talking about the physical Amazon Marketplace, which still lies beyond the boundaries of "locations meant for Touhou and doujin-aware customers".

Addendum: a website specifically made for distribution of such goods, likely authorized by ZUN, seems like it would be the best course of action here.

[Moogs Parfait]

Amazon Marketplace allows users to set up their own store, basically equivalent to Storenvy but with more services offered.  I personally see it as a competitor to Ebay.

This gets into things like Youtube, where history based results are a gray area.  Non-Touhou fans aren't going to see Touhou stuff, but Amazon and Youtube are huge, so do they break the spirit of the rule?  I honestly don't know.

[Alcoraiden]

Phew. Adrenaline fading.  Glad this has gotten a resolution.

I find it a little despairing that ZUN is continuing to hold with his "don't sell on primarily foreign channels," because it's kind of hard for Western Touhou folks who don't know Japanese to distribute their stuff, then. Awkward at the very least. But in the end I believe ZUN played this very kindly and fairly, what with his clearing the project while stipulating specifically what he did and didn't want done. Good all around.

I imagine Saijee is very worn out from all this, between the tension of the situation and how he was running around like a headless chicken trying to solve this and get the word out, etc. I bet he'll show up when he's rested and gotten his everything back together. At least, I hope. It'll be nice to have some postmortem conversations, so to speak.

I guess I had a few questions left over...
- How is he going to finish in a year? Wasn't the point of the crowdfunding to help him do that?
- Is From Soy Sauce going to release expansions with more characters, etc. after the game is done, to make up for the lack of stretch funding they might've otherwise made and the fact that people were super enthused about getting more characters?
- Along that vein, will improvements/patches/etc be made post-official-release?

[Reu]

Phew. Adrenaline fading.  Glad this has gotten a resolution.

I find it a little despairing that ZUN is continuing to hold with his "don't sell on primarily foreign channels," because it's kind of hard for Western Touhou folks who don't know Japanese to distribute their stuff, then. Awkward at the very least. But in the end I believe ZUN played this very kindly and fairly, what with his clearing the project while stipulating specifically what he did and didn't want done. Good all around.

I imagine Saijee is very worn out from all this, between the tension of the situation and how he was running around like a headless chicken trying to solve this and get the word out, etc. I bet he'll show up when he's rested and gotten his everything back together. At least, I hope. It'll be nice to have some postmortem conversations, so to speak.

I guess I had a few questions left over...
- How is he going to finish in a year? Wasn't the point of the crowdfunding to help him do that?
- Is From Soy Sauce going to release expansions with more characters, etc. after the game is done, to make up for the lack of stretch funding they might've otherwise made and the fact that people were super enthused about getting more characters?
- Along that vein, will improvements/patches/etc be made post-official-release?

I believe he's going with that one suggestion in which he will release the game barebones  then update it with new content.

[Alcoraiden]

Boss. That's what I had hoped. Yay!

[aUsernameIsFineToo]

Glad that damage control was exercised to its maximum extent.

About the "don't sell on primarily foreign channels", I'd like to think it's still that way because the Western fanbase is still uncharted territory, so to say. Perhaps ZUN will open his eyes to the rapidly expanding fanbase we have here and change his mind regarding that. Then, he might set up official rules for how derivative works can be distributed here, and more circles like FSS can develop their works with less worries and more confidence.

[Alcoraiden]

Yeah, this was cutting into some new territory, and I assume over time the Western fandom will find its footing and the Eastern folks will get used to our presence and we'll all figure this out.

[Helepolis]

In addition to my previous post, this was what Kilga also pointed out:

So near as I could tell through all the voice modulating (sorry to be this person, but those added effects made it really difficult for me to understand what was being said) is that people who want to maintain their perks can refuse the refund. I'm mildly surprised this is allowable by ZUN's guidelines: whatever amount of refund is refused by the original donator still amounts to crowdfunding in the end.

[Reu]

In addition to my previous post, this was what Kilga also pointed out:

Is it not possible for them to simply go into that donationware style as mentioned before?

[Colticide]

Is it not possible for them to simply go into that donationware style as mentioned before?

Donationware is meant for the game to be given out for free, not the money.

[Disgaeafan1]

Phew. Adrenaline fading.  Glad this has gotten a resolution.

I find it a little despairing that ZUN is continuing to hold with his "don't sell on primarily foreign channels," because it's kind of hard for Western Touhou folks who don't know Japanese to distribute their stuff, then. Awkward at the very least. But in the end I believe ZUN played this very kindly and fairly, what with his clearing the project while stipulating specifically what he did and didn't want done. Good all around.

I imagine Saijee is very worn out from all this, between the tension of the situation and how he was running around like a headless chicken trying to solve this and get the word out, etc. I bet he'll show up when he's rested and gotten his everything back together. At least, I hope. It'll be nice to have some postmortem conversations, so to speak.

I guess I had a few questions left over...
- How is he going to finish in a year? Wasn't the point of the crowdfunding to help him do that?
- Is From Soy Sauce going to release expansions with more characters, etc. after the game is done, to make up for the lack of stretch funding they might've otherwise made and the fact that people were super enthused about getting more characters?
- Along that vein, will improvements/patches/etc be made post-official-release?

As for finishing in a year, he mentioned in the video that he (Saijee) is going to be taking time off from school purely to finish the game.

[Reu]

Donationware is meant for the game to be given out for free, not the money.

Yes, but by giving the game out for free and taking the previous donations as donations for that case would that not achieve the same results?
Or am I missing something.

[Colticide]

Yes, but by giving the game out for free and taking the previous donations as donations for that case would that not achieve the same results?
Or am I missing something.

I'm... not really sure. I guess it depends on how you look at it really. If we had a actual doujin representative in the forums then we could get some better information then maybe/maybe not.

[Flandre5carlet]

For the record: https://www.facebook.com/fromsoysauce/posts/832714640123144

[Helepolis]

For the record: https://www.facebook.com/fromsoysauce/posts/832714640123144

Still doesn't explain the fact that no matter what the funders want, it remains a crowdfunded project.

[Ozzy]

I don't want to believe it but it almost sounds like that facebook post is giving an excuse to keep the money.

[Flandre5carlet]

Still doesn't explain the fact that no matter what the funders want, it remains a crowdfunded project.

Oh , I know. I was only posting it to show it.

The thing is that if what is said in that post is true, then they got themselves in a very sticky situation where they are obligated to go forward with the funds they received and deliver the perks and all due to Indiegogo guidelines, while they aren't allowed to go through with the project if it is crowdfunded, because of ZUN's guidelines. That is, if some of the funders do not want to demand a refund and instead legally enforce them to deliver the perks, which would frankly be a dick move.

[aUsernameIsFineToo]

Putting aside issues such as "interest", which I think doesn't apply here, I fail to see how literally refunding the money would put FSS in an obligation to do anything. In the worst-case scenario someone goes sour and a brings up a lawsuit, but even then, there must be proof that the donations were refunded, right? It's like listing a one-of-a-kind on eBay, having someone buy it, and you breaking it as you pack it into the box or something. Once the money is refunded, it's literally as if the transaction never took place. The buyer, just like the donors, might be frustrated that they didn't get what was wanted, but there's nothing to do once the money is refunded in full. If they try to sue, I'm sure they'll lose their case fairly easily.

[Alcoraiden]

Is "Indiegogo won't let us undo this, but we are not receiving any more funds and from here on will comply completely with all agreements made after that money was obtained" not at least a shakily reasonable thing? (No is of course an answer here. )

[Reu]

Well, I'm trying to convince them to go into donationware because at least then there would be at least less issues with those who deny refunds.
However they instead wish to do it themselves as it makes them look "desperate".

[Colticide]

I'm having trouble understanding. They can't refund because of indiegogo? Or they can but the issue is that some backers will refuse the refund?