"Crime?" "Thieves?" Those are strong words. You might want to learn how intellectual property works. And I already said I don't really know.
No, not as a moderator. As a creator. You don't actually buy a game. You buy a license to it. That's how it works. It sucks. Means the rights holders can take it away from you any time. Which can happen, for example, if they no longer have publishing rights. That's unfair to players, but it's how things work in the legal sense, so please don't accuse itch.io of being complicit to a so-called "theft". Instead, make sure you have a copy of the game on your computer, and a backup too. You couldn't do that if it happened on Steam, so who are the thieves here?
Means the rights holders can take it away from you any time
Uhm. Actually. No. Not according to Itch terms, if that it refers to the license you were talking about.
Users shall retain a license to this content even after the content is removed from the Service
What they can do, is remove it from the "the Service".
This is not about IP. This is about Itch terms and publishing here and buying things that are in the cloud.
Typically, if you buy a game on Steam, it stays bought and downloadable, even if the developer removes it for various reasons. Even if those reasons are of legal nature, like expired rights to publish. Yeah, that drm stuff also means they can take away games, but the publihser no longer selling the game on Steam is not such a reason.
The problem on Itch is, that while you still have the licence, you no longer can download the files. And this also goes for files that are removed on a whim by the developer/publisher.
I don't think that's exactly right.
Yes, you buy a license. But that doesn't mean the rights holder can take the license from you. The license is intangible and permanent. Even if you lose access to the media, technically the license persists. But this isn't a case of people losing their license, as the availability of a download is not "the license". Whether or not this situation is itch's fault, it certainly makes them look bad when every other game store leaves delisted games on user's accounts (since the license can't be revoked, why deny those users access?). Netflix apparently doesn't care about making enemies and itch is an unfortunate victim of that.
Actually yes. By default, a software license lasts for as long as it's granted. Only open source licenses are perpetual and non-revocable by design. And if a store, any store, were to keep a game that the publisher can no longer distribute, then it would really be breaking the law.
Yes, the law is bad. (Copyright sucks if you ask me.) But to claim that itch.io somehow has a duty to... what... go against the entire legal system? Another famous organization tried just recently. They're called the Internet Archive. You know how that ended, right?
That is a logical fallacy. Yes, the Internet Archive lost a lawsuit because they violated copyright law. But that is completely unrelated to how licenses work. And itch.io is not in that situation here either- they have no legal reason why they can't keep distributing content that is being distributed in compliance with the licensing agreement, the licensing agreement grants users a perpetual license, and that license survives termination of the agreement with the publisher so even if the publisher says "Nope, not going to sell it anymore" the user who purchased should still, per the language of the agreement, have access to the content. And perpetual is, shockingly, perpetual, and that's the case of the license agreement here, so the "as long as it's granted" argument is irrelevant.
The only legal shenanigans going on here is that either the studio or the publisher (and with the publisher being Netflix, I know who I suspect more) said basically "Oh you can download it before October 1st, so you still 'have access' even though we're taking it away" but I think that's flimsy and I seriously doubt it would hold up in court- the license doesn't just say have access, it says "to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service." That seems to be a lot more expansive than the topic at hand.
It's also worth noting that copyright licenses are legally enforceable contracts, and unless those contracts have an explicit term (i.e. "You are granted this contract for the duration of [period of time]") I believe that in most jurisdictions those contracts would be indefinite (again, not a lawyer, but Google doesn't seem to contradict me). If you have a licensing agreement, you have to comply with the listed grounds for termination or you are violating the contract. Even a revocable license typically has specific criteria for its revocation (like materially breaching the contract terms) and can't be revoked without a listed reason unless the contract has "at any time/for any reason" clauses.
Now, having said all that, I'm going to say something that's probably more important. I'm not a lawyer, and I strongly suspect you aren't one either from the tone of your post, but importantly, I'm not associated with the platform in any way, shape, or form. I'm not saying this to win an internet argument, but if you aren't legal counsel to an organization, but are involved in something that may turn into a lawsuit, you shouldn't be speaking about it. I've been in a situation where I've been, by being a volunteer for an organization, tangentially involved to a lawsuit against an organization, and anything I said in any communication with anyone in the organization could be subpoenaed for that lawsuit, and while it never happened to me things other volunteers said was taken out of context and leveraged to make the organization look bad (which is bad legal practice since the context was pretty exculpatory but I suspect the point was to coerce the organization into settling).
Itch.io probably isn't liable for this (it would be either the developer or publisher breaching the agreement, if I understand it correctly) but they may be named as a party to a lawsuit given that their platform is involved in the circumstances and you have that shiny "moderator" name badge that could get you involved indirectly.
Best practices is to not talk about legal issues as a possible party unless you are absolutely certain that you are in the clear, because I can guarantee you someone will make your comments ammunition in a way that's very embarrassing for someone else and that will make it very uncomfortable for you. And based on the fact you're mentioning things like "Only open source licenses are perpetual and non-revocable by design" while talking about a perpetual license that survives termination of the Terms of Service you're probably not being cautious enough in your research or wording (and if you can find anything in the itch.io Terms of Service that states that licenses can be revoked, you're welcome to share a link, though I wouldn't encourage commenting any further per my point above.)
Anyway, TL;DR, don't talk about legal stuff when you have a shiny name badge because it will suck for you if it does go to court, even if you're not a lawyer, and also you need to do less association of unrelated things and some basic research before making an argument and you'll be a lot more convincing, or at least maybe know when to pick a battle.
Of course I'm not a lawyer, but when you make stuff and put it online? You have to know a thing or two to stay out of trouble. And you don't.
First of all: no, a license is not a contract. A contract has to be signed by both parties, otherwise it's null and void. And even if it was a contract, it could be canceled.
Second, I'm a volunteer moderator. Nothing I say here is official. Especially since this is about a project published on itch.io, where I have no authority as a moderator (it only extends to the community). Edit: in fact I pointed out repeatedly throughout my posts in this topic that I'm only expressing my opinions as a creator and player who is using the site like everyone else. Even our admins use their accounts the usual way.
Third: you seem awfully certain this can go to court, and you're making statements that sound threatening. I do not appreciate being threatened. You throw around awfully big words given the nature of this entire situation.
Once again, I am not a lawyer. I could be wrong about any and all of this. But your arguments don't convince me at all. And itch.io does have legal council. The real kind, for a change.
First: https://www.investopedia.com/terms/l/licensing-agreement.asp. Also, your understanding of contract law is sorely lacking. A contract *can* be cancelled but it has to meet criteria to do so. If a contractor gets paid for work they don't complete on a project, that's a breach of contract, and just because they say "I cancelled the contract" doesn't mean they're not liable for breach of contract. Taylor Swift's publisher licenses music to Spotify, but if they said "Actually we're just going to pull our music" without having a clause in the contract they could point to Spotify would have grounds to sue for damages. Also, both parties agreed to the itch.io Terms of Service as either publishers and users, so both are bound to the Terms of Service as a contract (and yes, that is a contract, here's a link: https://www.iubenda.com/en/help/43147-are-terms-of-service-legally-binding), and while both parties do have ways to terminate the contract, the termination of the contract does not terminate clauses that survive termination, of which the clause in question actually does. I don't have any nicer way to say it, and if you're going to argue it further, I would appreciate some actual sources or research instead of hand wave "No it isn't" responses that are factually wrong and can be debunked by a single Google search.
Second: I was a volunteer and was told that having a name badge as a moderator in a social space potentially made me a party to the lawsuit. I'm just saying what I was told based on my experience. You're welcome to ignore it, like I said I'm not a lawyer, but as someone who has done community moderation which is sucky work for sucky compensation it's not worth the trouble in my opinion. Just because what I said "wasn't official" didn't mean it wouldn't be hoovered up in a subpoena (yes, I asked, I'm not just making this up, sorry you want to get defensive but court systems don't care about "just using the site like everyone else" and it's a very frustrating experience).
Third: Not threatening you, just offering advice which I recommend you take, but you don't have to and I'm not going to be the one to do anything- I don't have the kind of money to launch a lawsuit over a $9.99 game that I got in a bundle. However, this is a material breach of contract and potentially someone could take it to court and speaking from experience it hits different to see comments you read online from fellow volunteers in a court document. And yeah, I throw around big words, because in case you've ever seen a legal document they don't exactly avoid them. I can't believe in 2024 "using big words" is somehow a reason to invalidate an argument, but then again it is the internet. But I would encourage, before you keep posting and making yourself look like you don't know what you're talking about, to at *least* look for an answer some of the things you're going to say, because when your "first of all" point is factually wrong it really erodes credibility.
The point is, that Itch might change their tos and do keep frozen versions of a game for access, similar to Steam. But in their current tos they do not act in such a capacity and push all privileges and duties to the publisher. The privilege is to be able to remove the content. The duty is to not being able to revoke the license and it would be very wise of a developer to remove content in a way that does not result in eglible refund requests. Removing content is rather unwise to begin with. But making people not act unwise by tos is practially impossible.
To speculate about reasons: there is no curation of the files. The publisher handles all of them. There is no platform integration. It is just file hosting. Steam games on the other hand are integrated into the platform. The developer cannot just change files or functionality on a whim.
The plus is, that drm is not a thing on Itch in most cases. The minus is, that you should always download your purchases. Including any mega bundles.