I got burned the last time I attacked video game blogs for shoddy journalism, but this time Kotaku (and others) have hit on something that's been annoying me for a while.
According to Kotaku, THQ has entered into an exclusive, confidential agreement with Nintendo to produce software using Nintendo's IP. There follows in the comments a lot of wailing and gnashing of teeth. "Oh Noes! It'll be just like those crappy Zelda games for the CD-i! We're doooooomed!"
This is one of the many situations where I wish that video game journalists would keep someone with legal training around so that they could make sure that they're not making asses of themselves before publishing things like this. In this case, they're reading a legal document and applying to the words in it the stupid video game journalism jargon meaning of the abbreviation IP, rather than its legal definition.
IP stands for Intellectual Property. It is a legal fiction that allows us to conceptualize ownership of an intangible idea. The three principle forms of intellectual property are patents, copyrights, and trademarks. A patent conveys ownership of a particular invention or process and allows the inventor to receive royalty payments from others who would use the patented device. They tend to last only a short time. Copyrights are similar, granting the owner a monopoly over her creative works. Trademarks are somewhat different. They exist both for the good of the public and for the benefit of the trademark owner. They allow consumers to quickly distinguish one brand of product or service from another. They also allow trademark holders to build a reputation for their own products that won't be sullied by the actions of similarly-named competitors.
Video game journalists, in their never-ending quest to appear grown-up, have started using the term IP. When video game journalists use the term IP, they use it to mean a game or series of games that exists in its own universe distinct from a company's other games or series's. Used in a sentence: "Nintendo has a lot of valuable IPs, like Mario and Zelda, but they've been slack in bringing new IPs to the public in recent years." The video game journalism version of IP is sort of like the legal version, but not quite. A video game journalist IP likely includes some legal IP (the copyright to whatever games are part of the seriers, the trademarks in the titles of the games and in the likenesses of the game's characters, that sort of thing) but it is not "an IP" in the legal sense of the word.
So we come to this passage, which makes complete sense if you understand IP in its legal sense:
"...the right to use certain of Nintendo's intellectual property to develop, have developed, have manufactured, advertise, market and sell video game software for play on Wii until October 13, 2009 in all countries within the Western Hemisphere."
What this almost certainly means is that Nintendo grants THQ the right to use various Nintendo trademarks, copyrights, and patents in the development and marketing of games for the Wii. For example, Nintendo is granting THQ the license to use Nintendo's Standard Development Environments (which Nintendo would have a copyright on) to develop Wii software. Nintendo is also licensing some of its trademarks to THQ. Nintendo's name, its logo, and the logo for the Wii are all trademarks. THQ needs to officially license the right to use those marks in order to put them on the packaging for its games. This clause in what is undoubtedly a big, complicated licensing agreement encompases all of those pieces of intellectual property that THQ would need to develop games for Nintendo's platform.
But if you're a video game journalist, and don't understand that not everyone uses Intellectual Property to mean the same thing that you use it to mean, you read that out-of-context passage and say "Wow! Nintendo is granting THQ the right to use its IPs(like Zelda or Mario or Kid Icarus)! What a scoop!" And, if you're Kotaku, you publish a story about it and make an ass of yourself.
In fairness, the story was originally reported at gamesindustry.biz, which really ought to know better. It was also picked up by 1up.com. Both gamesindustry.biz and 1up.com have published updates retracting the story. Kotaku has left it to fester uncorrected as of this writing. Joystiq hasn't touched the story, and Chris Kohler at Game|Life has published a scathing debunking.
So the scoreboard:
Good Journalists: Game|Life
Might Be Good Journalists, Might Be Asleep at the Wheel: Joystiq
Barely Meet the Minimum Standards of Journalistic Integrity: 1up.com, gamesindustry.biz
Still Finding New Ways to Sink Below My Lowest Expectations: Kotaku
