Lawyer warns game developers about 'unlawful game design' as 'dark patterns' lawsuits rise
When I think of game design that might be «unlawful,» I think of gambling, but things aren't so simple these days, warns Eric Weiss, a trial lawyer who defends companies from class action lawsuits and other disputes. The US Federal Trade Commission is on the lookout for so-called «dark patterns» in software and websites, and Weiss says that game developers should be very careful.
In 2022, the FTC defined dark patterns as «design practices that trick or manipulate users into making choices they would not otherwise have made and that may cause harm.» Typically, that means users spent money or signed up for something they didn't really want to because of a confusing or hostile user interface. Examples you may have encountered from online retailers include:
The games industry has already been docked for alleged use of dark patterns: The FTC landed a $245 million settlement with Epic Games after claiming that Fortnite's unintuitive UI constituted using «digital dark patterns to bill Fortnite players for unintentional in-game purchases.»
What I wanted to know from Weiss, who spoke about dark patterns to game developers at GDC last week, is whether dark pattern lawsuits could go beyond store interfaces. What about gameplay design? For instance, if players of an MMO are encouraged to grind for a special limited-time item, and then a year later the MMO's developer decides to give that item away to everyone, were the players who stayed up all night in the first place «manipulated» and «harmed»? What if the developer genuinely changed its mind and hadn't intended to trick players?
Speaking to me ahead of his GDC talk, Weiss confirmed that I was asking the kinds of questions game developers should be concerned with.
«One of the identified dark patterns is grinding,» said Weiss. «And that's 'making a free version of a game so cumbersome and labor intensive that the player is induced to unlock new features with in-app purchases.' So it's set up in a way that you don't need to
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