When we think of game design that might be "illegal," gambling comes to mind, but it's not so simple these days, warns Eric Weiss, a trial lawyer who defends companies against class action lawsuits and other disputes. The U.S. Federal Trade Commission is on the lookout for so-called "dark patterns" in software and websites, and Weiss says game developers should be extremely careful.

In 2022, the FTC defined dark patterns as "design practices that have the potential to deceive or manipulate users into making choices they would not have made otherwise, causing damage. Typically, this means that someone spent money or signed up for something they did not really want because of a confusing or hostile user interface. Examples of online retailers include:

The gaming industry is already being docked for alleged use of dark patterns: the FTC has alleged that Fortnite's unintuitive UI is "a digital dark patterns" and reached a $245 million settlement with Epic Games.

What I wanted to know from Weiss, who spoke about dark patterns to game developers at GDC last week, was whether dark pattern lawsuits could go beyond the store interface. For example, if MMO players are encouraged to struggle for a special limited-time item, and a year later the MMO developer decides to distribute that item to everyone, are the first players to stay up all night "manipulated" and "victimized"? What if the developer genuinely changed his mind and did not intend to cheat the players?

Prior to his talk at GDC, Weiss confirmed that I was posing the kinds of questions that game developers should be concerned about.

"One of the dark patterns identified," Weiss said, "is scraping. And that is to 'make the free version of the game cumbersome and time-consuming, inducing players to unlock new features through in-app purchases. In other words, it's set up so that you don't have to buy it, but is it so difficult that the practical reality for reasonable gamers is that they have to make that purchase' Are they being deceived, or is it somehow unfair?"

Weiss, whose job is to defend companies against these types of lawsuits, says the increase in dark-pattern litigation from federal and state agencies and consumers is not a "sky is falling" situation for the industry, but game makers should "pay close attention." He advises developers to be honest and transparent, but warns that what is and what is not a dark pattern is open to interpretation. 'The criteria are unclear,' he says. There are no provisions. It is very broad.'

The website Deceptive Patterns catalogs examples of conventionally recognized dark patterns, such as subscriptions that are difficult to cancel and fake user reviews. (In some cases, they also use terms that do not sound like omens uttered by a council of wizards.) The litmus test for dark patterns that Weiss suggests to developers is to imagine what they would think if they had to explain their UI decisions to a judge. If they hid the disclaimer because it would increase sales, they might have a problem.

In everyday online usage, however, "dark patterns" can represent more than e-commerce marketing tricks. For example, the website "Dark Pattern Games" warns players about mobile games that "use psychological tricks to manipulate you into becoming addicted to the game." The site categorizes dark patterns into four categories: financial, psychological, temporal, and social, some of which are considered normal aspects of playing video games, such as developing an attachment to a high-level character or a collection of powerful items.

For the site's curators, there is a spectrum of darkness, and intent matters. A game with collectible items "does not instantly become a dark pattern game," they say in their FAQ, but it becomes harmful if it encourages unlimited spending on microtransactions by exploiting the natural human urge to collect things.

I have never seen the term "dark pattern" used so broadly in a legal context. However, "trick" and "harm" can mean many things, and I have found instances where dark patterns are used as part of a larger legal claim that game developers are using psychological tricks to addict players to their games.