BFL's prices were clearly listed in USD, not BTC. Therefore, the refund they give will be in equivalent USD value. If BTC had dropped to $0.25/ea between the time of the order and now, do you think people would be complaining that they received back 20x the original Bitcoins they had paid? Or, if BFL was doing what you want, and only refunding the original BTC amount, do you think people would be complaining that they received a BTC refund only worth $65 when they paid $1,300 of BTC to begin with? The fact of the matter is, the only fair way to refund people is by using the original written purchase price, which was denominated in USD, not BTC.
BFL clearly stated that they accepted BTC as a form of payment. Barter laws would sanctify this point. After a certain amount of time of nondelivery, people have the right to demand a refund, and if the value of BTC was falling with no hopes of ever bouncing back, customers would have to settle for the BTC that they spent to be returned. If you have your device, and know that you will not make the BTC back on it that you spent, then it is not "profit" in terms of BTC. You cannot just switch $ with BTC so freely just because we are all aware of exchange rates. I get that you are trying to be optimistic though.
bcp19 comes out here and says things like "Since BFL *is* shipping, they aren't a scam". Right, like just as long as you are getting a percentage that you were promised, it's not a ponzi scheme. "Since BFL is shipping to a few people, they aren't scamming everybody as much as originally thought." - That's the best logical conclusion.
Furthermore, I need to address this: "Technically they were investors as it was known at the time that BFL did not have this technology in hand and would be creating, testing and perfecting it."
Technically the chips were on the final phase of production, and they are shipping the ASICs in October 2012. So you believe what you want. Where they optimistic. Yes. Did they lie? Also yes.