Game development: risks from code and asset production using AI

In recent weeks, I have already published a few articles on the topic of AI and law. Even though I am convinced that AI in one form or another will soon be an integral part of our lives, I always want to point out the legal risks: Today, a short excursion into game development, which I have been involved with as a lawyer for 15 years and as an entrepreneur for 25 years.

What is AI-driven software development?

Using AI in software development is an exciting new way for companies to develop software faster and more efficiently. By using machine learning and other AI technologies, developers can anticipate new use cases and optimize software before it hits the market. This is a revolutionary development that has the potential to change the way developers do their jobs. But what exactly is meant by AI-driven software development?

AI-driven development is a process that uses machine learning to improve the quality of software and optimize code. Machine learning is used to customize the user interface and make predictions about its behavior. This allows programs to be designed more intelligently and offer more functions than conventional programs. However, AI-driven development can also help game developers create better software faster, especially in aspects not necessarily related to “creativity”, such as backend, server architecture, etc. In addition, AI-driven development offers much greater scope for experimentation with different technologies and design approaches. Such development can also help make workflows more efficient, especially in teams with limited resources. Because machine learning automates many tasks – including test automation – some tasks can be completed without human intervention. This saves teams time and allows them to focus on the creative aspects of game development.

There is therefore no doubt that AI-driven software development will continue to gain importance in the future. Many companies have already started to integrate AI into their production processes, and this is just the beginning. There is no doubt that the technology will continue to improve, both in terms of accuracy and efficiency of code generation.

What are the general risks?

One of the biggest risks in developing computer games with AI is that the developers will not be able to meet the expectations of the players. Most people have an idea of how a particular game should work before they play it. If the AI in this game doesn’t meet these expectations, it can lead to many players quitting the game immediately and no longer being interested in the brand. Another risk in AI-driven computer game development is the danger of cross-utilization of data. If a company tries to use the same data for several different games, it can result in games that all look the same and differ only in nuances. This could scare off potential customers and cause them to have no interest in the developer’s other games.

And legal risks?

The use of artificial intelligence (AI) in computer games is becoming increasingly popular. It’s no surprise that AI-driven development has become one of the hottest trends in software development. Although the technology offers many benefits, there are also some legal risks that need to be considered. Unauthorized use and copyright infringement are the main risks in AI-driven computer game development. For example, especially when using SaaS services, it is often not possible to rule out the possibility that copyright-protected components of the games are copied by the AI providers and possibly used for future customers. This could become a problem. But the details are complicated. This means that developers who create AI software must be extremely careful to prevent their code from being used or modified without authorization. The risk, then, could be games developed using AI tools can become embroiled in complex litigation. In such cases, a party may claim that its intellectual property was used without permission or illegally copied. This could lead to problems, especially internationally, since patents on software are possible in the U.S., for example, or copyright on pure code is judged more strictly than would be the case in Germany. Developers must therefore ensure that their software complies with all relevant legislation and that its distribution does not lead to any copyright infringements.

Another risk could be that the AI develops code components that the developer himself does not understand enough. The risk of bugs or even backdoors in the code could thus be constant and immanent. But which developer thoroughly checks code that he has automated? Then you could develop this yourself right away?

And developer contracts?

The introduction of AI-driven computer game development poses a number of liability risks that must be considered. However, developers who want to take advantage of the opportunities must also be very careful when drafting their developer contracts to ensure that all relevant details are correctly worded. An inaccurately worded contract can expose both the developer and other parties to immense liability risk. An example of such liability is the risk of bugs. Depending on the wording, the developer is liable for all damages caused by bugs or has to perform extensive rework that leads to financial losses. In addition, specific copyright issues may arise in AI-driven computer game development. Because AI is used to generate certain elements in games, it can be difficult to determine who exactly owns those elements and whether the developer even owns the rights to those elements (be they graphics, sounds, or code) and whether or to what extent they can or may license them to the publisher. Developers should therefore ensure that all necessary rights and permissions are clarified in advance and that all relevant information is always included in the contract. To effectively minimize all of these liability risks and avoid unnecessary disputes, it is essential for developers to thoroughly draft their developer agreements in detail and explicitly address all associated liability risks and define measures to avoid them. This is the only way to ensure that all parties involved are aware of their respective responsibilities and the exact circumstances, and to avoid the threat of disputes or lawsuits.

Since this area of game development is still in its infancy, there is no case law or even best practice approaches to all of these issues yet.

Conclusion

The opportunities are great, especially in issues of efficiency, but also, of course, in integrating technologies and skills into games for which the developer does not have access to “human resources,” whether because the cost is too high for an indie developer or because there are not enough people to hire. However, there are also risks, and it is advisable not only to seek professional legal help, but also to deal transparently with potential contractual partners.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.