Reselling your physical copies of games is all fine and dandy in the eyes of the law, but Bethesda’s lawyers have found a way to quibble over semantics and go after a man in the US for selling a sealed copy of The Evil Within 2. The problem was that Hupp had never unwrapped and played the game (he’d never bought the PS4 to play it on) and so had listed it as ‘new’.
While there’s a large market for second hand games, legal firm Vorys contacted Philadelphia-based Ryan Hupp over a listing for the game on Amazon Marketplace, demanding that he remove the listing or face a lawsuit for quite a bit more than the game is worth. Naturally, he did remove the listing, because it probably wasn’t worth the hassle over something like $25.
Under the US First Sale Doctrine, you’re able to resell goods as long as they have not been significantly altered from its original form, but Bethesda view this to extend beyond the disk and box it comes in.
When reached for comment, Vorys stated that “Bethesda does not and will not block the sale of pre-owned games. The issue in this case is that the seller offered a pre-owned game as ‘new’ on the Amazon Marketplace.
“We do not allow non-authorized resellers to represent what they sell as ‘new’ because we can’t verify that the game hasn’t been opened and repackaged. This is how we help protect buyers from fraud and ensure our customers always receive authentic new product, with all enclosed materials and warranty intact.”
If Hupp had listed the game as ‘pre-owned’, he would not have been threatened with a lawsuit, but it strikes me that this is a dumb semantic legal argument that didn’t really need to be brought up and could be used to erode the second hand market over time. Speaking to Polygon, Hupp said, “I understand the legal arguments Bethesda are relying on, and accept that they have some legitimate interest in determining how their products are sold at retail. But threatening individual customers with lawsuits for selling games they own is a massive overreach.”