[timwiseman]

I am not a lawyer, but my understanding is the courts would see a distinction.

Kickstarter goes out of its way to try to make sure people understand that it is not a preorder service, and many projects include a "risks" section specifically talking about how it could fail.

There would be a clear case for fraud if the people asking for contributions just took the cash and walked. But in the event of a good faith effort that failed, I think the court would find that the contract was probably upheld. The possibility of failure was always there and what was promised was the effort.