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That’s not really a fair way to evaluate contracts for fairness and ethical conduct. Not only does the contract have the obligation to be clear (and let’s be bl

by CPLX 5y ago

That’s not really a fair way to evaluate contracts for fairness and ethical conduct. Not only does the contract have the obligation to be clear (and let’s be blunt the people that do this are often not trying to be clear about what they are doing) it also needs to meet basic standards of reasonableness. Specifically, to the extent that a contract diverges sharply from the general understanding each party has about how the world works, the more the drafting party has an obligation to clearly call out the terms in a manner commensurate with the importance of the contract term. Legal documents aren’t software code, it’s a classic mental error developers make when discussing them. They are evaluated by humans. For example, it would not be reasonable to have a single sentence buried in the middle of a 20 page SaaS contract that obligated you to purchase cat food, or signed away the rights to your apartment. Wouldn’t matter how plainly worded the sentence was and if it was duly signed. You’d still have to convince a judge that was a reasonable thing to do. Good luck with that. And regardless of legality it’s obviously not ethical it’s a trick, intended to be deceptive. Obviously there’s subtlety to this and the exact details matter. But that’s my point. You can’t just fall back on the idea that anything you get someone to agree to isn’t a dark pattern. The whole point of dark patterns as a concept is that you’re tricking people into agreeing to unreasonable things.

awillen 5y ago
What you're talking about is just clearly not the same point that I made. I said: "In general I don't think it's fair to describe anything as a dark pattern this is clearly communicated in a contract." You said: "or example, it would not be reasonable to have a single sentence buried in the middle of a 20 page SaaS contract that obligated you to purchase cat food," I specified that it has to be clearly communicated. You responded with an example of something that very obviously is not clearly communicated. The examples that OP gave are generally things that are clearly communicated. When you sign up for a SaaS service and agree to pay for a set number of seats for a set duration, it's clearly communicated - after all, it's an absolutely basic part of the agreement and one that always has to be actively discussed between the parties (the SaaS vendor must tell you that you're billed on a per-seat basis, and you must tell them how many seats you need). What you're describing is all true in theory but not applicable at all to my post or the examples of OP that I cited.
- CPLX 5y ago
  I still disagree with your premise. You’re saying that as long as the terms are clearly communicated they’re not a dark pattern, aka unethical. I think if you’re using your superior understanding of the dynamics of using your product to create unreasonable gotcha situations that customers would not have agreed to if they had any choice then that’s dark patterns. There are lots of examples but most revolve around lock-ins and ratchet type mechanics. Things like making it easy to create data but punitively expensive to get it out in order to switch products. Things like making it easy to scale up the service but literally impossible to downsize also can qualify, which was the issue we were both referring to. Or your example of a setup period could also qualify. Sure if it’s like super clear I guess so, but it’s pretty easy to see that often in that scenario people don’t realize the implications of the “onboarding period” and it’s a bit of a trick. I’m speaking from personal experience this kind of trickery is rampant in trying to interact with many of these services. I got far into negotiations with a household name marketing platform and notice they never once mentioned the mandatory fees for onboarding. They also never said a word about outbound email limits and data limits etc. I knew only from stories from someone who had gone with them, gotten locked into a year of spending, and discovered in the first week that the service was literally unsuitable for them given their requirements. I was in a similar negotiation with them at the time and they were trying to trap me in a similar way. Humans have a pretty intrinsic concept of fairness. There’s a cottage industry of SaaS companies that don’t care about that and many of us find it exhausting and not ethical. They use deceptive tactics with customers and anti-competitive tactics to acquire or eliminate competitors so you don’t have choices. It’s a fucking crisis. Which is why this whole thread is raging with comments.
  - awillen 5y ago
    The problem is that you're not defining "dark pattern" reasonably. "You’re saying that as long as the terms are clearly communicated they’re not a dark pattern, aka unethical." You're saying that something being unethical makes it a dark pattern, and that's wrong. If I rob you at gunpoint, that's definitely unethical, but it's not a dark pattern. "I think if you’re using your superior understanding of the dynamics of using your product to create unreasonable gotcha situations that customers would not have agreed to if they had any choice then that’s dark patterns." Again, this is in no way relevant to the examples cited. Telling the customer that any seats they sign up for must be paid for a full year is not an unreasonably gotcha situation. It's a concept that's clearly explained, and one that won't be a surprise to anyone who has any experience purchasing SaaS products, because it's common industry practice. As to the idea that they don't have a choice to agree, that's virtually never true with SaaS. It is an enormously competitive industry with multiple players in every major area. On top of that, if you're talking about tech companies buying SaaS products, they also have the option to build their own tools if they don't like the options that are available. "Things like making it easy to create data but punitively expensive to get it out in order to switch products." Again, this is true but in no way relevant to anything I've said. If it's clearly communicated that you're going to have to pay a million dollars to get your data out, it's a bad business practice but not a dark pattern. You're applying the label "dark pattern" incorrectly to any SaaS practice you dislike. The phrase has a specific meaning, and any practice that is clearly and honestly communicated up front, even if it's a horrible practice, is not a dark pattern.

by CPLX 5y ago

awillen 5y ago

What you're talking about is just clearly not the same point that I made. I said: "In general I don't think it's fair to describe anything as a dark pattern this is clearly communicated in a contract." You said: "or example, it would not be reasonable to have a single sentence buried in the middle of a 20 page SaaS contract that obligated you to purchase cat food," I specified that it has to be clearly communicated. You responded with an example of something that very obviously is not clearly communicated. The examples that OP gave are generally things that are clearly communicated. When you sign up for a SaaS service and agree to pay for a set number of seats for a set duration, it's clearly communicated - after all, it's an absolutely basic part of the agreement and one that always has to be actively discussed between the parties (the SaaS vendor must tell you that you're billed on a per-seat basis, and you must tell them how many seats you need). What you're describing is all true in theory but not applicable at all to my post or the examples of OP that I cited.

CPLX 5y ago
I still disagree with your premise. You’re saying that as long as the terms are clearly communicated they’re not a dark pattern, aka unethical. I think if you’re using your superior understanding of the dynamics of using your product to create unreasonable gotcha situations that customers would not have agreed to if they had any choice then that’s dark patterns. There are lots of examples but most revolve around lock-ins and ratchet type mechanics. Things like making it easy to create data but punitively expensive to get it out in order to switch products. Things like making it easy to scale up the service but literally impossible to downsize also can qualify, which was the issue we were both referring to. Or your example of a setup period could also qualify. Sure if it’s like super clear I guess so, but it’s pretty easy to see that often in that scenario people don’t realize the implications of the “onboarding period” and it’s a bit of a trick. I’m speaking from personal experience this kind of trickery is rampant in trying to interact with many of these services. I got far into negotiations with a household name marketing platform and notice they never once mentioned the mandatory fees for onboarding. They also never said a word about outbound email limits and data limits etc. I knew only from stories from someone who had gone with them, gotten locked into a year of spending, and discovered in the first week that the service was literally unsuitable for them given their requirements. I was in a similar negotiation with them at the time and they were trying to trap me in a similar way. Humans have a pretty intrinsic concept of fairness. There’s a cottage industry of SaaS companies that don’t care about that and many of us find it exhausting and not ethical. They use deceptive tactics with customers and anti-competitive tactics to acquire or eliminate competitors so you don’t have choices. It’s a fucking crisis. Which is why this whole thread is raging with comments.
- awillen 5y ago
  The problem is that you're not defining "dark pattern" reasonably. "You’re saying that as long as the terms are clearly communicated they’re not a dark pattern, aka unethical." You're saying that something being unethical makes it a dark pattern, and that's wrong. If I rob you at gunpoint, that's definitely unethical, but it's not a dark pattern. "I think if you’re using your superior understanding of the dynamics of using your product to create unreasonable gotcha situations that customers would not have agreed to if they had any choice then that’s dark patterns." Again, this is in no way relevant to the examples cited. Telling the customer that any seats they sign up for must be paid for a full year is not an unreasonably gotcha situation. It's a concept that's clearly explained, and one that won't be a surprise to anyone who has any experience purchasing SaaS products, because it's common industry practice. As to the idea that they don't have a choice to agree, that's virtually never true with SaaS. It is an enormously competitive industry with multiple players in every major area. On top of that, if you're talking about tech companies buying SaaS products, they also have the option to build their own tools if they don't like the options that are available. "Things like making it easy to create data but punitively expensive to get it out in order to switch products." Again, this is true but in no way relevant to anything I've said. If it's clearly communicated that you're going to have to pay a million dollars to get your data out, it's a bad business practice but not a dark pattern. You're applying the label "dark pattern" incorrectly to any SaaS practice you dislike. The phrase has a specific meaning, and any practice that is clearly and honestly communicated up front, even if it's a horrible practice, is not a dark pattern.