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Bethesda's Lawyers Take Issue With Someone Reselling A Sealed Copy Of The Evil Within 2

Well, that's a New one...

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.”

Source: Polygon

8 Comments
  1. MrYd
    Member
    Since: Mar 2011

    Yes, he’s legally allowed to resell it, but the problem seems to be that “significantly altered” thing. It looks like the law is on Bethesda’s side there too. If they only offer a warranty to authorised sellers, that counts as a significant alteration if you buy it from an unauthorised seller (and seems to have been legally tested).

    Blame Amazon for it instead. They only have options for “new” and “used” (with various modifiers such as “like new”, “good” and “kicked around a bit and some sort of animal chewed on it, probably a dog, but it’s hard to tell”)

    In this case, it’s clearly not “new” by the strict legal definition, but it’s also not “used”. If he’d listed it as “used – like new”, that would probably keep every happy. Except for this person trying to sell it, since he’d probably get less money for it.

    Actually, blame Bethesda or their lawyers for not handling it well (maybe just ask nicely rather than instantly threaten to sue?), Amazon for not having enough options, and the seller who wants more money for selling a second hand game as new.

    Comment posted on 13/08/2018 at 11:47.
    • JR.
      Member
      Since: Apr 2013

      IMO the blame is on Bethesda and no one else.

      If a game is sealed in the original shrink wrap, it’s new & sealed.

      If I return a sealed game/dvd/cd to a store for a refund, do the store stick it in the bargain bin and slash the price? Do they bugger. They stick it back on the shelf and sell it to someone else as ‘new’.

      If there’s an issue with a product being sold on ebay / Amazon market place etc. then the buyer takes it up with ebay / Amazon marketplace etc. Bethesda have no reason to interfere.

      Unless, what they’re saying is… if I buy a dodgy game on ebay that was advertised as ‘new’ (and isn’t), I should ring up Bethesda customer services and demand they send me a new copy of the game or refund the purchase? I’m pretty certain they’ll tell me to take a hike and lodge my concerns with ebay.

      They have no excuse for this behavior/treatment of the poor guy. It’s poor form from Bethesda plain and simple. Making out that they’re looking out for gamers interests when they’re only looking out for themselves.

      If only they were as committed to finishing their games before releasing them to the public and patching them later.

      Comment posted on 13/08/2018 at 13:30.
      • MrYd
        Member
        Since: Mar 2011

        It’s mostly Bethesda (or their lawyers) to blame, sure.

        But it’s also clearly not a new copy the guy’s trying to sell. It’s exactly the same as your example of a store putting a returned copy back on the shelf. Should they be doing that? Probably not. You never know if it’s been opened, any DLC used, and then resealed. It’s not hard to get into those things. Remember when PSN cards came in sealed DVD cases? Someone managed to unseal a whole bunch of them in HMV (in Swindon, so that might explain it), remove the cards and then put them back on the shelf without anyone noticing.

        It doesn’t look great for Bethesda, and they could have handled it better, but the guy is trying to pass of a second-hand copy of a game as new, when Amazon at least has a “Used – like new” option. But then he probably wouldn’t be able to sell it for as much.

        Comment posted on 13/08/2018 at 13:59.
  2. JR.
    Member
    Since: Apr 2013

    So much bad publicity for this. What were they thinking?

    I think a bigger issue is high street retailers (GAME) opening new games, displaying the empty box on the shop floor and keeping the game disc in a drawer behind the counter, and selling the game as ‘new’. But no, lets pick on some random guy selling one sealed game on Amazon Marketplace.

    Bethesda joining Square Enix on my list of publishers to boycott.

    Gamers don’t forget. Ask Microsoft.

    Comment posted on 13/08/2018 at 12:23.
    • ron_mcphatty
      Member
      Since: Sep 2008

      They really do that?? I assumed everyone bought empty cases to put on shelves then swap them for sealed ones when you pay. No wonder my nephews have complained that their DLC codes didn’t work!

      Comment posted on 13/08/2018 at 12:48.
      • Foxhound_Solid
        Is a smart cookie.
        Since: Dec 2009

        Bethesda have taken a ridiculous stance here and to achieve what? They’ve tainted their image at the very least. Fools – the person selling the game is selling whats to them a brand new product. Such a shame.

        And GAME can suck a fat one. They do that! I once went to buy Destiny for the PS4, was told it was brand new even though the game was unwrapped, the box was worn and the games and inserts were in a drawer. Needless to say I went back and flipped after discovering all the codes had been used even after I proclaimed the game wasn’t new – I managed to wrestle a full refund out of them and I never looked back. Game have always been bad but we were almost forced to use them when the Gamestation merge happened [who were a much better outfit to be fair]

        Now I get my games/consoles from Tesco, Smyths, HMV, Ebay and Amazon. Ill never ever use game ever again!!!!EVVVEEERRRRR!!!!

        Comment posted on 13/08/2018 at 13:00.
      • JR.
        Member
        Since: Apr 2013

        Yep. They certainly used to.

        Comment posted on 13/08/2018 at 13:42.
  3. Adrian Burrows
    Member
    Since: Jul 2017

    I hope this isn’t a sign that Bethesda are looking into attempting to remove the second hand market. If so, they may have forgotten that the only way a lot of people can afford new games – myself included – is to trade in their old games. Take that away and the result is simple: I’ll buy less new games.

    Comment posted on 13/08/2018 at 12:57.