1UP says Konami “made it clear we wouldn’t be leaving until we signed” NDA (Now with “Escape from Konami” Flash game!)

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Rumors abound that Konami presented non-disclosure agreements to reviewers wanting an early look at its latest game, Metal Gear Solid 4. While NDAs are common and generally accepted, this particular one attracted attention due to its claimed terms: specifically, reviewers were not to disclose certain facts about the game in their coverage. 1UP’s Jeremy Parish not only confirms it, but describes further startling details: the NDA was presented only at the very end of a several-day reviewing session, applying retroactively. Worse, Parish suggests that they were threatened with detention until they signed it.

Unfortunately, the NDA was supposed to have been ready day one, which would have been fine. Our practice when presented with NDAs is to run them by the legal department first. But they didn’t give us our NDAs on the first day. Or the second. Instead, they presented them to us at the literal last moment — I was watching the game’s closing credits scroll past — and made it clear that we wouldn’t be leaving until we signed them. This was a problem, as we had a plane to catch and a magazine to ship within the next few hours, which didn’t leave time for running things by legal. So, despite some misgivings, we signed. We didn’t really leave us a choice.

The part that’s really incongruous is that Parish’s presentation of this absurd situation is cast as a defense of Konami, even though it resulted in suboptimal coverage, a bout of internal hand-wringing after they signed the NDA, and was plainly extortive. It is “not-at-all-sordid,” he writes. Parish even casts criticism of Konami in straw-man fashion, as people calling the company “Nazis.”

Standard procedure in journalism when authorities threaten to detain you is to know your rights and call your editor immediately. Standard procedure in journalism when PR people threaten you? Hard to know, really, because it’s hilarious.

In honor of the outrageous threats allegedly made by Konami’s PR goons, BBG presents Escape from Konami, an awful flash game. Click it to begin. Enjoy!


Jeremy’s 1UP blog [1up]

About Rob Beschizza

Rob Beschizza is the Managing Editor of Boing Boing. He's @beschizza on Twitter and can be found on Facebook too. Email is dead, but you can try your luck at besc...@gmail.com
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44 Responses to 1UP says Konami “made it clear we wouldn’t be leaving until we signed” NDA (Now with “Escape from Konami” Flash game!)

  1. themindfantastic says:

    signed under duress… such a contract becomes equivalent of wet toilet paper.

  2. dculberson says:

    @John, right on. I think my response would have been, “once our Legal okays this, I will sign it.” If they wouldn’t let me go, I’d call 911 on my cell phone. have them explain to the police why we can’t leave.

  3. Rajio says:

    Agreed. Don’t sign things under duress. What are they going to do? Put you under house arrest? Its their fault. Agree not to go blab too much but also not to sign until legal takes a look.

    If the journalists feel slighted its their own fault. Stand up for yourselves and show some integrity. They didnt ‘force’ anybody to sign anything.

  4. Daemon says:

    “I can’t leave until I sign this document? Pardon me, I’ll just be calling the police and charging you with unlawfull detainment now…”

  5. adamrice says:

    I believe this is called “illegal detention” in the USA. It’s not clear whether any other reviewers chose to call them on this, but if they had, Konami would have had a gale-force PR shitstorm on their hands.

  6. Takuan says:

    Frank Zappa:
    “Rock critics are people who can’t write, writing for people who can’t read about people who can’t play.”

    tweak that a bit…

  7. Rob Beschizza says:

    “There wasn’t even a threat of detention.”

    is incompatible with

    “they made it clear that we wouldn’t be leaving until we signed them. This was a problem, as we had a plane to catch … it didn’t really leave us a choice.”

    Parish’s words are not ambiguous.

  8. Rob Beschizza says:

    Also, thanks for the comments on my game!

  9. Anonymous says:

    Gaming Journalism is a bad joke, and this is just one of the punchlines.

  10. technogeek says:

    If they’d sprung this on me, I would have published a carefully worded less-than-enthusiastic review of the game. Or simply not published a review at all.

    Treating reviewers badly is NOT clever; you need their good opinion.

    “Never anger a bard, for your name sounds funny and can be made to scan to Greensleeves.”

  11. mlennox says:

    so…

    has anyone managed to get past the machine gun yet?

  12. Matt J says:

    What the hell? He should have laughed in their face and asked to leave. If they prevented him from leaving, sue them for false imprisonment. What an idiot.

  13. njmalhq says:

    Job requirements for journalist:

    (1) Courage.
    (2) Basic knowledge of the law.

  14. jennfrank says:

    No.

  15. Anonymous says:

    “How many of you commenters actually read the entire article, out of curiosity?”

    I’m not sure John or Rob did!

  16. MB says:

    That posting should have been the death knell not only of that writer’s career, but of 1UP. And yet pretty much all I saw in the comments was props.

    People get what they deserve, I suppose.

  17. Anonymous says:

    The Konami code! It does nothing!

  18. Rob Beschizza says:

    “This is business as usual. Companies always have NDA”

    As far as this post was about NDAs (the “detention threat” thing is far worse), it was about how this particular NDA *differs* from typical NDAs.

    NDAs which determine the content of coverage are certainly not business as usual. In years of writing (the last two in the NDA-heavy field of tech), I’ve never had an NDA which stipulated anything close to specifying a review score, as you submit.

    Regarding the interactive animation thing: you cannot get past the machine gun. You will never leave Eurasia alive.

  19. Jaap Weel says:

    FWIW, I believe the technical term is indeed “false imprisonment,” not “unlawful detainment” or “illegal detention.” False imprisonment is one of the traditional common law torts, and it would be your typical cause of action against a private party. But it does require threats of physical force, I believe. (But IANAL.) If the government were holding you, presumably you’d file for “habeas corpus” instead. (But IANAL.)

  20. Anonymous says:

    Well, Rob, it does happen. It has happened. Reviewers have been told that only reviews with scores of such-and-such or above may print on such-and-such date, and reviews with lower scores must print on a later date. Maybe coercion is not always so obvious and unsubtle, fine. But yes, PR has used NDAs to punish writers for negative critiques… in games writing, anyway. I don’t know how it differs from your two years’ experience in straight-up tech writing.

    But rather than publishing along with everyone else, that company elected to withhold their reviews. That is a lot of coverage, lost. Then that company — not Mr Parish, but the company — explained why the review would have been compromised had it been published earlier. Again: I don’t think that’s gutless at all.

  21. codeloss says:

    “Gaming Journalism is a bad joke, and this is just one of the punchlines.”

    Couldn’t have said it better myself.

  22. mlennox says:

    ROB BESCHIZZA: “Regarding the interactive animation thing: you cannot get past the machine gun. You will never leave Eurasia alive.”

    Dang – I even tried the Konami code, which surprisingly, didn’t work.

    Did those present try the Konami code? I would have paid money to see a room full of journos taking two steps forward, two steps back, shuffle left and right twice and then announcing “BAH! BAH!” before sneaking out with infinite lives and ammo.
    ;)

  23. strider_mt2k says:

    So the assholes sign.

    Way to comply, sheep.

  24. Anonymous says:

    No one is especially in the wrong here, friends. This is business as usual. Companies always have NDAs. Writers always have a decision to make. Oh, sure, I am ethically opposed to the way game publishers’ PR constantly manipulate writers, strong-arming them between a turd and a hard place. But the way these NDAs operate? That is totally standard practice.

    And unfortunately, Foobar (#12) is absolutely correct.

    PR might phone to hassle a writer who has been especially negative in his critique, for instance. They may even contact his superior and request that the writer be pulled off future reviews… not that I know anyone to whom this has happened.

    In many ways, NDAs even the playing field and make things fairer: writers are not permitted to share details of the game, or their subsequent evaluations of the game experience, until a specified day. Smaller publications, therefore, get an equal shot at coverage, appearing on Metacritic the same day as the bigger sites. Conversely, though, NDAs maintain uneven terrain, because they safeguard those exclusives a publication has bargained (or paid) for. Get a developer exclusive, and no other site or magazine can beat you to the punch. After all, in online media, the most important thing is breaking the information first. Time is money.

    Of course, if you willfully break an NDA, you can launch the story (or review) first. At gaming websites, everyone sits with their fingers hovering over a ‘publish’ button, and as soon as one website snaps and leaks the story early, your coworkers all curse and flip out and rush to break the story, too, since the NDA is now worthless. But there’s no integrity in leaking a story, and if you break an NDA, as Foobar says, you ruin the relationship with the developer’s PR and lose future access to developers, to their PR, to preview/review code, and — if you really piss off someone important — to the consoles that play review code. Alas, NDAs are a fact of life.

    Some NDAs are nightmares. Some NDAs stipulate strange things — if you want to publish your review on such-and-such early date, along with your competitors, you must omit such-and-such detail, or you must score like so. If you cannot agree to whatever criteria, you are gagged until a later date. This is how some PR ensure that, upon launch, a game be released to only positive reviews, for instance. In time the NDA will expire and other sites, slow to the punch, can publish their less favorable opinions. Unfortunately, those sites’ readerships wanted to know whether that game was worth buying well before its release date.

    Is it best to refuse to sign NDAs and simply blurt information as you please? Probably not. Is it best to go along with every NDA like a merry little elf? Doubtful. Choosing to wait to speak freely — a money-hemorrhaging decision in the push-button publishing business, to be sure — is not a particularly sackless or pigeon-livered act. I think it’s gutsy to wait until you are legally in-the-clear to open your mouth.

    -former insider

  25. lemonmeringev2 says:

    Let’s look at the background:

    “We had three days to review the game and, coincidentally, three days before our issue had to ship. Not the best timing, but for a game this big you suck it up and deal with the distress. Konami’s reps mentioned a few times that we’d need to sign a non-disclosure agreement before we left — no big deal, as NDAs are standard when it comes to large releases, and it’s not like we’re in the habit of spoiling games for people anyway.”

    The author doesn’t care about signing an NDA, as it is standard practice, but also because the author isn’t big on incorporating spoilers into his reviews. Parish had ample warning that he was going to sign an NDA. Not only that, there was the pressure to get this game reviewed and published under so little time, which was about the only dramatic thing that could be culled from a story like this.

    Again, there is no implication that Parish was being threatened with detention. Why? Because the words “threatened” or “detention” or any variation of such are not even in the article. Not even in the sentence you have quoted again and again.

    Rob, you must have read something foreboding about the phrase, “made it clear that we wouldn’t be leaving until we signed them.” Where do we see any details of threats? You’d think such a breach of rights would warrant an opinion or two from the author. Only Parish doesn’t even find the situation all that bad. I’ve read his comments to the article… he doesn’t see it as shady as you do. You’re right that Parish’s words are not ambiguous; they’re as clear as daylight. There is no controversy here.

    And why not practice some journalism and contact the author for more accurate details instead of making guesses? Or pull some info from other places?

  26. lemonmeringev2 says:

    The game reviewer wasn’t being threatened at all. The situation was that the NDA was supposed to be presented on day one, but due to some mishap, was given at the last minute and caused constraints on the reviewer’s flight schedule, publication shipping, and running it through the legal department.

    There wasn’t even a threat of detention. The entire situation was nothing but a bunch of hiccups that caused delays, and the only complaint the author had was that he could not discuss the game’s length.

    Where is the suggestion, or rather the implication, that the author was being threatened with detention, or even claimed that he was being threatened with detention?

    As for the straw-man about people calling Konami Nazis, that was not a literal comparison but a cheeky deflation of people’s attitude towards the company in light of this situation, as the commentators at this post continue to perpetuate with their conjectures on how to “escape” the Konami staff. There was really nothing shady about this entire situation, and caused no permeneant damage to both parties involved. Actually reading the article would have proved all of this.

    Props to the people who took the time to create a game for this though. Neat.

  27. mark zero says:

    Rob’s right — this flash game is silly, but the whole gaming press thing is silly.

  28. Anonymous says:

    As a Journalism graduate, I can confirm that taking at least one course in Media Law is mandatory for holding a degree in this field. At my University, you couldn’t pass these classes with a “D” either; you HAD to have an A, B, or C (with the professor having right of refusal to pass you if you got a low C and he/she deemed you unworthy).

    It doesn’t matter to me that Parish wrote a weasely defense as a follow-up, the law is the same regardless. Despite his tight schedule, he should have told Konami the NDA had to pass through Legal first and refused to sign until it was cleared. If the flight was missed, his publication could haggle with Konami later about compensation for flight rearrangements + potential illegal detainment lawsuit if necessary.

  29. Anonymous says:

    How many of you commenters actually read the entire article, out of curiosity?

  30. Anonymous says:

    What you do is pull your legal-carry piece and kill every one of them, walking out.

  31. Rob Beschizza says:

    OMG.

    My egregious error has been rectified.

    It is now possible to complete the “game” — by cheating!

  32. Rob Beschizza says:

    But, um, be sure to refresh your cache :)

  33. Rob Beschizza says:

    I can understand how “made it clear we wouldn’t be leaving” could be some kind of figurative exaggeration, as you suggest. But if they’d miss their plane as a result and had no choice in the matter, that’s detention, no matter how you want to parse around it.

    Explain to me a plausible scenario to explain that scenario which which does not involve (a) detention, or (b) exaggeration of the circumstances by 1UP.

    I fear picking up the phone here would result in (a) or (b) being confirmed to no good end. So, not today.

    This whole thing is a tragicomic whimper of the miserable compromises that an enthusiast press must endure. It’s just a game, so that’s what it got.

  34. foobar says:

    Treating reviewers badly is NOT clever; you need their good opinion.

    Unfortunately, you’re wrong. There’s absolutely no shortage of game reviewers, so only the compliant ones get access. Don’t sign our NDAs or give them less than stellar reviews? Don’t expect any further review copies, and expect them to pull advertising from your employer.

  35. Anonymous says:

    I more or less agree with what the article (and most of the comments) is saying… but what’s this piece doing on a gadget site?

    That aside, Parish makes a pretty flimsy excuse for signing the NDA in spite of his scruples. First of all (I could be wrong): he’s an editor — not just a staff writer — and should really know better. Maybe there’s more going on than he’s willing to reveal, but in any case it would have been better to not do an editorial showcasing his blundering. If you’re calling yourself a journalist, whether it may be for The Economist, Cat Fancy, or a gaming mag (in order of social signifigance)… you don’t sign off on something you don’t agree with because it will cost you a few hours in an airport.

    But to put things in a better light (for Parish): he DID give the game an A- in his definitive web review. So for those who seem to think he is bashing Konami in an attempt to exonerate himself… it doesn’t really seem to hold.

  36. dculberson says:

    Rob, very nice.

  37. Anonymous says:

    You should have just told them that you are leaving, or you are going to call the police. Then as you were leaving, call the police, accuse them of trying to kidnap you. Then, you publish all of the info you learned, while making the point that you did so because the team tried to kidnap you, and making a point to Konami that you will not work with that particular team, nor give favorable reviews until the situation is rectified.

    But of course, you did none of that because you are failures at not kissing ass.

  38. Halloween Jack says:

    #1 John Brownlee: Too right. I would have thought of the sort of cash that Konami had to settle lawsuits vs. what I was earning as a game reviewer (if anything) and said, calmly, “I’m leaving. Are you going to try to stop me?”

    #31 lemonmeringev2: What part of “they presented them to us at the literal last moment — I was watching the game’s closing credits scroll past — and made it clear that we wouldn’t be leaving until we signed them” are you having difficulty with?

  39. John Brownlee says:

    Rob and I were talking about this, and while Rob ultimately decided to play his post close to the chest, I’d just like to express my outright contempt for the reviewer in question. Grow a sack.

  40. Enochrewt says:

    Standard procedure in journalism when PR people threaten you?

    You shout “Your bad!”, crotch punch them and then scurry out the door with the gaming scoop of the year. Sure you won’t get invited back to Konami anytime soon, but there’s rules to play by. If Konami can’t get it together enough to abide by them, they get burned.

    This reminds me of the recent Metallica incident.

  41. Rob Beschizza says:

    Pro tip: the proper hand-to-hand combat maneuver for this situation in the games-writing world is known as the Side Suto.

  42. mannakiosk says:

    7

  43. Antinous says:

    That’s seven more than usual.

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