Amazon's Marketplace is home to many sellers who try to resell used games, or occasionally, new games. Usually, there's no issue with this method, at least, until Bethesda involved themselves with one of the sellers, Ryan Hupp. Hupp had been trying to sell a sealed copy of The Evil Within 2; the product itself had been purchased by him prior, but still remained in the shrink wrap from original store that he'd bought it from. The sale page stated the copy of the game was "new", rather than used, due to that fact. However, shortly after creating the listing, Bethesda had contacted Hupp, telling him that he needed to remove the listing. He was also issued a legal notice from their lawyers, telling him that if he didn't take down the sale, legal action would be taken. Within the notice was the explanation that Hupp's sale was "unlawful", as he was not an authorized reseller of the company's games.

Unless you remove all Bethesda products, from your storefront, stop selling any and all Bethesda products immediately and identify all sources of Bethesda products you are selling, we intend to file a lawsuit against you

After the listing was removed, Bethesda made an official statement on the matter, claiming that they never have, nor ever will prevent used games sales. They specifically took issue with Ryan Hupp selling The Evil Within 2 due to the fact that he marked the copy of the game as "new", and according to the legal team, it's impossible for him to sell a new game, as he cannot provide a warranty on the product.

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.

In this case, if the game had been listed as “Pre-Owned,” this would not have been an issue.

Currently, there are no listings for "new" copies of The Evil Within 2 sold by marketplace users on Amazon. Though, eBay has dozens of listings of "new", factory sealed versions of the game, sold by regular eBay sellers, with varying amounts of feedback. Do you agree with Bethesda's stance, or do you think that they're trying too hard to police the public on game sales?

Source

 

[WildDog]

You realize he never accepted the EULA for that game because it was still shrink-wrapped, right?

When he bought the game he got a licence, with the license it came the EULA, the terms of service, etc.
The seller can put the game again for sale as "mint" or something like that.

 

[MadonnaProject]

"as new" is not the same "new".
It's a pre owned game, even if you never used it. It had a "end user" so is not new.
In court he has no chance to win, because he broke Zenimax/Bethesda EULA. When he got the license for the game he agree to those terms... Even if they are crappy.

You want piracy??? No problem, but then don't complaing about crappy ports... Steam with it's bad things did show to the developers that profit was still possible for the PC....
Or you forgot about the crappy ports that PC had from 2004 till more or less 2011.. A good example the first port of Resident Evil 4.... Let's do a quick port of a port (PS2 version) with even less effects, why bother??? if they are going to pirate the game.

EULA? terms of use do not apply if you haven't used the product. A contract doesn't just carry on possession.

Bethesda is wrong and bullyish. Most of the game industry is. Hence piracy. if they'll hit at you, its only suitable to hit back. HENCE PIRACY.

By your logic amazon is under the "EULA" also. So why can they sell a game but a guy cannot? Oh right, they're rich.

American logic. Always baffling.

 

[YuseiFD]

What a bait title.

 

[player594]

Anything sold at a store can be labeled as previously owned. Because the store is technically the first buyer. They buy it from the manufacturer and developer, then resell it to customers.

 

[gudenau]

I completely agree with what they did here, selling a used game as new is scummy at best.

Good job Bethesda for doing something right with your legal team for once. :V

 

[FAST6191]

I completely agree with what they did here, selling a used game as new is scummy at best.

Was it functionally a "used game" though? If it was never opened, never used, presumably kept in conditions amenable to it.. basically functionally identical to a copy that just left the press (or shrink wrapping machine as the case may be) then what distinction can really be made?

 

[grossaffe]

In case of damage prior to sale the warranty for new software is 3 months, you're entitled to a medium replacement.

The point was that the disc is not "just the medium", it is a part of the product. A broken/non-working disc could not be replaced with a simple download code and it be an adequate replacement. The license, the software, and the physical object are all part of the product. Heck the concept of "new" really only pertains to the physical aspect of it.

The tainted bit is quite funny, but not relevant. The disc was never used either way. I doubt that it's Gamestop policy for employees to play the games and resell them, so the cloth example doesn't apply. There is no wear and tear involved.

It is relevant because it fits your definition of "new". We can sit here all day and argue the definition of "new", but neither of us are authority figures on the matter. As for letting employees play games and resell them as new, see the previously-provided link: https://kotaku.com/5205385/gamestop-sells-played-games-as-new-sources-say-practice-could-be-illegal

Plus, a disc being played is not the only source of wear-and-tear. Wear-and-tear of discs tends to come from being handled. Like, I dunno... taking it out of its hard case and placing it in a soft sleeve that does not provide the same protection.

You can reject it, but the fact is. once it leaves the official reseller is not new anymore and it seems that the Law agrees with it.
About gamestop... is not the first time they do things they should not.... like when they were selling refurbished 360, that had bad fixes applied... So gamestop is not an example of good business practices

The point, again, is that they claim the following:

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.

And yet gamestop, one of (if not) the largest retailers of video games in the country, does exactly this, and not a peep from Bethesda. So on one side, we've got a company that habitually opens and repackages games, and on the other side, we have an individual who made a one-time sale of a game still in shrink-wrap, and it is the latter that they are concerned about possibly opening and repackaging the game.

 

[Anunnymous]

They did well. You have no idea how big the "re-seal" market for some videogames is.

I completely agree with this. Also, the fact that 99% of games come with no kind of insert, whatsoever, makes it even easier to re-seal and re-sell.
I don't know his asking price but I hate seeing shit for sale on Facebook "Brand new, still sealed" and them asking full price. I always ask them, "what kind of warranty can you provide me?" At least with Amazon or eBay, there is some sort of buyer protection.

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Was it functionally a "used game" though? If it was never opened, never used, presumably kept in conditions amenable to it.. basically functionally identical to a copy that just left the press (or shrink wrapping machine as the case may be) then what distinction can really be made?

The fact that there is no warranty.

 

[FAST6191]

The fact that there is no warranty.

Why should there be no warranty? I would agree we are dealing with US law where warranties are seemingly optional extras which makes this something of a catch 22. Still if someone is selling a functional identical thing to that which just wandered out of the factory then I am not sure why no warranty should be granted.

 

[KingVamp]

Remind me, are EULAs even enforceable?

 

[samcambolt270]

Remind me, are EULAs even enforceable?

according to precedent, in most cases, no.

 

[Anunnymous]

Why should there be no warranty? I would agree we are dealing with US law where warranties are seemingly optional extras which makes this something of a catch 22. Still if someone is selling a functional identical thing to that which just wandered out of the factory then I am not sure why no warranty should be granted.

Warrantys are non-transferable for most products. They only apply to the original purchaser. Video games and video game consoles are one of those products where they are non-transferable. If you receive the "new" game and break the seal and the game is cracked, you'd legally be out of luck. There are other ways to go about getting the game replaced but are technically illegal and fraudulent.

--------------------- MERGED ---------------------------

Remind me, are EULAs even enforceable?

This really wouldn't fall under a EULA. I'm not a lawyer but if your local supermarket went and bought a truck load of Great Value product from Wal-Mart and put it on their own shelves, there'd be a shit storm.

 

[FAST6191]

Warrantys are non-transferable for most products. They only apply to the original purchaser. Video games and video game consoles are one of those products where they are non-transferable. If you receive the "new" game and break the seal and the game is cracked, you'd legally be out of luck. There are other ways to go about getting the game replaced but are technically illegal and fraudulent.

That seems like a silly thing for a product that is sold to someone you don't first vet. Guess we are back to the letter of the law thing.

 

[the_randomizer]

Right "protect" gotcha. Totally not anti-consumer at all. No wonder people pirate games.

 

[gudenau]

Was it functionally a "used game" though? If it was never opened, never used, presumably kept in conditions amenable to it.. basically functionally identical to a copy that just left the press (or shrink wrapping machine as the case may be) then what distinction can really be made?

But what if it wasn't? The price difference is pretty substantial and they could just shrink wrap it.

Bottom line, it was owned and not by a distributor so it's pre-owned.

 

[FAST6191]

But what if it wasn't? The price difference is pretty substantial and they could just shrink wrap it.

Bottom line, it was owned and not by a distributor so it's pre-owned.

So someone might do some fraud? Is that a particularly good reason for this legal contrivance?

 

[TeamScriptKiddies]

Bethesda doesn't know how to read apparently: "The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction."

Source: https://www.justice.gov/usam/crimin...54-copyright-infringement-first-sale-doctrine

I say he should just relist it, they can't do anything about it legally. They can threaten all they want, but they have no case against him....

 

[gudenau]

Was it functionally a "used game" though? If it was never opened, never used, presumably kept in conditions amenable to it.. basically functionally identical to a copy that just left the press (or shrink wrapping machine as the case may be) then what distinction can really be made?

You never know, could be a scam.

I think that Bethesda did the correct thing and you won't change that.

 

[FAST6191]

You never know, could be a scam.

I think that Bethesda did the correct thing and you won't change that.

Could be, someone could have broken into some authorised distributor and did the Indiana Jones routine as well. Gamestops have apparently been broken into http://www.wcjb.com/content/news/Tw...-broken-into-in-the-same-night-435192823.html
If we are entertaining what would be known as "movie plot threats" in the security world we would have to do it here as well.

More practically I would say there are ample controls and lines of recourse already in place from basic consumer/selling laws, to say nothing of the additional things provided by the platform in question, that make such a setup as you appear to be plumping for completely obsolete, possibly even always unneeded.

Not sure what the "won't change that" line was supposed to do but if you are going to be so staunch in your advocacy for the actions taken here I shall continue to attempt to understand it, mainly as I see no real path to thinking as such.

 

[Anunnymous]

I say he should just relist it, they can't do anything about it legally. They can threaten all they want, but they have no case against him....

While I agree, they probably can't take legal action. It is, however, against Amazon policy for him to list it as new. "Original manufacturer's warranty, if any, still applies, with warranty details included in the listing comments." Video game warranties are non-transferable. He would have to list it as "Used - Like New."

--------------------- MERGED ---------------------------

I like how everyone in here are law majors. The unfortunate truth is, the practice doesn't have to be illegal. They just have to bet that the person they threaten suit with, can't afford a lawyer for the long haul. The average person would be broke before the case ever reached a judge and that's what Bethesda is banking on. I guarantee Bethesda has better lawyers than any of you pretend to be.

 

[Condarkness_XY]

Warranty?! HaaaBullshit!