Unity versions not affected by Unity Runtime Fee

Unity versions not affected by Unity Runtime Fee.md

Unity versions not affected by Unity Runtime Fee

This is information that has been dug up by me and others in the Unity community. It's not official information from Unity (but most of the linked resources are). It is also not legal advise. I am not a lawyer.

TLDR:

Contrary to what Unity themselves are saying, for games made with these Unity versions, developers can elect not to be affected by a newer version of the Terms of Service that introduces the Unity Runtime Fee:

• Unity 2022.x or earlier
• Unity 2021.x LTS or earlier

This is according to the version of the Terms of Service that was in effect prior to April 3, 2023, which can be found in the Internet Archive here:
https://web.archive.org/web/20230303043022/https://unity.com/legal/editor-terms-of-service/software

Specifically, this section:

6. Modifications to these Software Terms and Long-Term Supported versions.

Without limiting the Terms, Unity may update these Software Terms at any time for any reason and without notice (the “Updated Terms”) and those Updated Terms will apply to the most recent current-year version of the Software, provided that, if the Updated Terms adversely impact your rights, you may elect to continue to use any current-year versions of the Unity Software (e.g., 2020.x and 2020.y and any Long Term Supported (LTS) versions for the Long Term Supported term as specified in the Offering Identification) according to the terms that applied just prior to the Updated Terms (the “Prior Terms”). The Updated Terms will then not apply to your use of those current-year versions unless and until you update to a subsequent year version of the Software (e.g. from 2020.3 to 2021.1). If material modifications are made to these Terms, Unity will endeavor to notify you of the modification. If a modification is required to comply with applicable law, the modification will apply notwithstanding this section. Except as explicitly set forth in this paragraph, your use of any new version or release of the Software will be subject to the Updated Terms applicable to that release or version. You understand that it is your responsibility to maintain complete records establishing your entitlement to Prior Terms.

On April 3, 2023, the latest version of Unity were Unity Unity 2022.2.13 and Unity 2021.3.22 LTS, which means that in the terms of the section above, the corresponding "current-year versions of the Unity Software" are 2022.x and 2021.x LTS.

Background

Unity Technologies has announced a new Unity Runtime Fee that charges developers a fee per installed game above certain thresholds.
https://blog.unity.com/news/plan-pricing-and-packaging-updates

Does this fee apply even to games that were already released before these terms were introduced? Unity is vague about this in multiple places, but says yes in one of their FAQs here:
https://forum.unity.com/threads/unity-plan-pricing-and-packaging-updates.1482750/

But developers didn't agree to those terms when they developed and released their already released games. Can Unity really make new terms apply retroactively to already released games? Yes, says a Unity employee who checked with a lawyer internally:
https://forum.unity.com/threads/unity-plan-pricing-and-packaging-updates.1482750/page-45#post-9297488

However, this conflicts with what Unity's own terms of service said up until April 3, 2023 (see link and quoted section further up).

When the old TOS, which developers agreed to, says that developers can choose to stick with that version of the TOS as long as certain criteria apply, then it doesn't matter that a newer version of the TOS, which developers didn't agree to, no longer says that. You can only change terms after the fact to the extend this has already been agreed to in advance, and the old TOS does not grant Unity free rights to change the terms later, due to the limitations specified in section 6.

Does the old TOS already allow for the Unity Runtime Fee?

Okay, so projects based on certain Unity versions are not bound by newer versions of the Terms of Service. But does the old version of the Terms of Service already allow for Unity to introduce new fees without changing the terms?

The Terms of Service are generally vague about the specifics of fees, but there are some notable differences of how they are described in the old and new TOS.

The new TOS (from April 3, 2023) has this section:

2.2 Unity Runtime

Subject to payment of applicable fees, if any, you may distribute the Unity Runtime as an integrated part of your Projects, solely as embedded or incorporated into your Projects, and solely to third parties to whom you license or sell your Projects or who provide you with services, in each case pursuant to an agreement that is no less protective of Unity and its licensors and its service providers than this Agreement.

Here, "applicable fees" could mean almost anything, and might have been formulated that way to already pave the way for the Unity Runtime Fee.

The old TOS (Prior Terms) instead had this formulation:

“Unity Runtime” means the runtime portion of the Software intended for distribution.

Conditioned upon your compliance with these Software Terms and the Terms, and payment of all applicable subscription fees, Unity grants you a non-exclusive, non-transferable, royalty-free right to (a) install and execute the Unity Editor solely for internal use by the number of Authorized Users as set forth in your Offering Identification to develop your Projects during the applicable term (the “Unity Editor Rights”), and (b) if you are using a version of Software other than an Educational Version, distribute the Unity Runtime as an integrated part of your Projects, solely as embedded or incorporated into your Projects, and solely to third parties to whom you license or sell your Projects or who provide you with services, in each case pursuant to an agreement that is no less protective of Unity and its licensors and its service providers than this Agreement.

Here, there is only reference to "payment of all applicable subscription fees", and since the Unity Runtime Fee is not a subscription fee, this phrasing grants a license to distribute the runtime as long as subscription fees are paid and other terms in THAT version of the TOS are complied with.

History of the Terms of Service

Unity has deceptively attempted to hide the fact that the old TOS placed these limitations on their own powers to change the terms. They have deleted a GitHub repository that tracked changes to the terms of service prior to the point where they removed the section about being allowed to stick with Prior Terms. See this reddit post:
https://www.reddit.com/r/gamedev/comments/16hnibp/unity_silently_removed_their_github_repo_to_track/

Also note that the Unity website doesn't properly keep track of the history of the Terms of Service.

The latest TOS says it was last changed on April 3, 2023:
https://unity.com/legal/editor-terms-of-service/software

The latest versions says "The prior version of the Software Terms is available here." and links to this page, but this page says it was replaced on October 13 2022:
https://unity.com/legal/terms-of-service/software-legacy

So the Unity website has not kept track of the version of the TOS that was the latest one in the period October 13 2022 to April 3 2023. Luckily, it's available in the Internet Archive here:
https://web.archive.org/web/20230303043022/https://unity.com/legal/editor-terms-of-service/software

Crucially, that in-between version ALSO has the clause about "may elect to continue to use any current-year versions of the Unity Software (...) according to the terms that applied just prior to the Updated Terms".

On April 2nd 2023, the "current-year versions of the Unity Software" were Unity 2022.x and Unity 2021.x LTS. So those Unity versions - as well as any earlier ones - are not affected by the new changes of the terms of service that introduce the Unity Runetime Fee. Or more specifically, you "may elect" to use those versions according to the "Prior Terms", so I suggest developers do elect to do that if they use those relevant versions of Unity.

In conclusion

Again, I am not a lawyer and this is not legal advise. But it is also clear that Unity absolutely cannot be trusted to interpret their own terms, given the way they have attempted to hide the facts and make statements which contradicts their own terms. And to my eye, it very much looks like there is no ground for them to enforce their new fees on games made with Unity 2022, Unity 2021 LTS, or earlier.

I would have taken it to mean you keep the entire group of ToS that were valid, for you, up to the time of rejection.

Though even if they only meant the Software Terms, both the General Terms (23.211 archived, 23.12 new)

If there is any conflict between these Terms of Service and any Additional Terms,
 the Additional Terms will control in relation to their subject matter. 

and the Additional Terms state

The Additional Terms supplement the Unity Terms of Service (the “Terms”).
 In the event of any conflict between the Additional Terms and the Terms, the Additional Terms shall control.

and since the old Software terms, as an "Additional Term", defines Unity Runtime distribution as royalty-free, they have nothing here.

So that would tell us to

• ignore the new distro fees, overruling 9.1 in Terms, due to our royalty-free Right from old Software
• because we already rejected the changes from new Software due to Modification Rights, when they tried to take that Right away

Sure, they can add fees, any time, for any reason, to anything, but in this case it should be meaningless because we rejected the version that split Unity Editor and Unity Runtime into 2 sections to allow for a fee in the first place and simply ignore

your continued use of any Offering after the effective date of any such change means that you accept and agree to such changes.

I guess we find out once the first lawsuit starts.

I guess we find out once the first lawsuit starts.

With arbitrage clause https://unity.com/legal/terms-of-service?

Any dispute arising out of, relating to or in connection with these Terms (including any disputes regarding the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to be) will be referred to and finally resolved by binding arbitration as follows:

If you Nintendo, you could probably do something behind such closed doors. If you are Indie dev? Pray they don’t alter the deal further.

With arbitrage clause https://unity.com/legal/terms-of-service?

You don't need to sue Unity, and probably shouldn't. (unless maybe they are holding your money hostage)
Let the giants slug it out.

Hypothetically
You would continue to act and operate under your original ToS, and refuse their invoice, per the "actual authority" you were granted by it.
We argue pacta sunt servanda they argue clausula rebus sic stantibus
(promises/agreements must be kept) vs (paraphrased: we have altered the deal...)

They can sue you, because they can skip arbitration. But then the dispute is over enforcement of terms you did NOT agree to.

Also, this doesn't list disputes regarding "future modifications" in the "including" terms in Arbitration.

Except for disputes falling within the Arbitration Exceptions set out below,
 any dispute arising out of, relating to or in connection with these Terms
 (including any disputes regarding the existence, validity, interpretation, performance,
 breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to be)
 will be referred to and finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”)
 under the AAA’s Commercial Arbitration Rules.

So depending on the judge this could be any of: an exclusion from arbitration, "overreaching" with an uncapped fee, promissory estoppel, unfair surprise (for the April ToS that permitted the fee), and more I might not be thinking of; arbitration might not be enforced. Now they are the bully.

A clause for modification would not have been needed before, because that was already settled in the Software Terms by us simply not upgrading to the next year. I guess they just forgot to add it.