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

 

[Foxi4]

There's a common misunderstanding in the community regarding the terms. "New" refers to a product sold by an authorised retailer, a game purchased and re-sold by a third-party, if foiled up, is considered pre-owned in mint condition, or "mint" for short. You owned the license for the software and you are re-selling it, it's the second transaction the game is involved in, therefore it's pre-owned, sealed or unsealed. Bethesda is within their rights here as the product is in fact mislabelled, at least according to the first-sale doctrine. They're also correct in saying that ensuring the completeness of the set is a big deal, it is not uncommon for counterfeiters to open sealed game cases, replace the discs with CD-R's and resealing them, this is why both Sony and Microsoft implement physical protection mechanisms on their packaging - Microsoft uses a scannable seal while Sony uses their trademark PlayStation strip on the foil. This distinction is specifically applicable to software as you are not just buying a disc, you're effectively buying a software license - this makes all the difference, it's not like buying other goods.

 

[auntnadia]

This was never anything to do with the way it was listed. That’s nothing more than a technicality, because they know the guy isn’t doing anything wrong. It’s none of the publishers business what people do with their own physical property.

Bethesda have been moaning about the second hand market for many years and this isn’t the first time they’ve done something like this. A while ago, some retailers in Australia slashed the price of second hand Bethesda games in protest of their heavy handed tactics.

I won’t be buying any Bethesda games via download or brand new from now on. Zenimax (Bethesda’s parent) are worth 2.5 billion and they’re bullying their own customer for less than $100! F#ck them.

 

[Wrathcaster]

I laughed at this, I really hope this doesn't get much exposure and make other companies try to push this slowly aswell

 

[Deleted User]

This has never ever ever been an issue before. This is just Bethesda over reaching. I've got a bunch of sealed games stored away that I plan to sell as new a few years down the like, and fuck anyone who says k can't. They aren't opened, they're sealed, so they ARE new. They've never been used, so they AREN'T used goods.

This is just a big company trying to control the 2nd hand market.

 

[FAST6191]

There's a common misunderstanding in the community regarding the terms. "New" refers to a product sold by an authorised retailer, a game purchased and re-sold by a third-party, if foiled up, is considered pre-owned in mint condition, or "mint" for short. You owned the license for the software and you are re-selling it, it's the second transaction the game is involved in, therefore it's pre-owned, sealed or unsealed. Bethesda is within their rights here as the product is in fact mislabelled, at least according to the first-sale doctrine. They're also correct in saying that ensuring the completeness of the set is a big deal, it is not uncommon for counterfeiters to open sealed game cases, replace the discs with CD-R's and resealing them, this is why both Sony and Microsoft implement physical protection mechanisms on their packaging - Microsoft uses a scannable seal while Sony uses their trademark PlayStation strip on the foil. This distinction is specifically applicable to software as you are not just buying a disc, you're effectively buying a software license - this makes all the difference, it's not like buying other goods.

While that would be the letter of the law I am now going to wonder how useful authorised reseller status is any more, especially as it pertains to games. Similarly if they do indeed follow your reasoning for that I would also have to wonder if they would do the whole cake and eat it bit -- while a lot of it has now been ruled during the cases (and general concerns for companies) we generally got the complete opposite interpretation and also things where the disc is an ownership token. However none of those were Bethesda (mostly autodesk for the juicy stuff) or their various arms and owners.

The materials quote is interesting. I shall have to ponder the Gamestop thing with deus ex a few years back. Warranty wise I have to dislike that manufacturer/factory/similar warranty was not the term -- said seller is free to provide their own warranty. Similarly I would have to wonder if they attach a warranty to a person rather than an item.

Wonder if we will see some consumer advice mysteriously pop up before long detailing new old stock, factory sealed, as new...

 

[Foxi4]

While that would be the letter of the law I am now going to wonder how useful authorised reseller status is any more, especially as it pertains to games. Similarly if they do indeed follow your reasoning for that I would also have to wonder if they would do the whole cake and eat it bit -- while a lot of it has now been ruled during the cases (and general concerns for companies) we generally got the complete opposite interpretation and also things where the disc is an ownership token. However none of those were Bethesda (mostly autodesk for the juicy stuff) or their various arms and owners.

The materials quote is interesting. I shall have to ponder the Gamestop thing with deus ex a few years back. Warranty wise I have to dislike that manufacturer/factory/similar warranty was not the term -- said seller is free to provide their own warranty. Similarly I would have to wonder if they attach a warranty to a person rather than an item.

Wonder if we will see some consumer advice mysteriously pop up before long detailing new old stock, factory sealed, as new...

Authorised resellers are an integral part of the distribution chain, they're in direct contact with the publisher and handle returns, faulties and so on and so forth. The reason why a publisher would rely on authorised resellers isn't just to ensure that the disc is correct, but also that none of the DLC codes that may or may not be in the box were removed, sneakily redeemed or tampered with before the first buyer purchases their copy. It's all quite complicated and boils down to the phrasing used - Bethesda would've been perfectly happy if the game was labelled differently - they say so themselves, so there's no doubt here. While I do think that the reaction is quite extreme, ultimately Zenimax is quite a litigious company, and Bethesda must necessarily abide by their standards of conduct, however silly that might seem. As for the Gamestop thing, I assume you're referring to opening games prior to the sale? This is standard practice - one copy of the game is always unsealed by the retailer to verify the contents - in the event of any returns that copy is used as a baseline of how a complete unit looks like and it's referred to as a "control copy". It's not unusual, most software retailers follow this routine, the control copy is simply sold last and resealed by the authorised reseller - that's where the "authorised" bit counts, the publisher assumes that the reseller will sell software in its complete form as they're contractually obligated to do so, Johnny395 on eBay isn't.

 

[DarthDub]

More like protect their own asses. Excuses.

 

[FAST6191]

Authorised resellers are an integral part of the distribution chain, they're in direct contact with the publisher and handle returns, faulties and so on and so forth. The reason why a publisher would rely on authorised resellers isn't just to ensure that the disc is correct, but also that none of the DLC codes that may or may not be in the box haven't been removed or sneakily redeemed before the first buyer purchases their copy. It's all quite complicated and boils down to the phrasing used - Bethesda would've been perfectly happy if the game was labelled differently - they say so themselves, so there's no doubt here. While I do think that the reaction is quite extreme, ultimately Zenimax is quite a litigious company, and Bethesda must necessarily abide by their standards of conduct, however silly that might seem.

I disagree that they need such a setup to ensure integrity. Such things I would say are more than adequately able to be handled by existing consumer protection infrastructure and site level protections.
If they want to have middlemen act as distributors or whatever then that is up to them (and I hate dealing with small numbers and the general public as well, logistics is not so bad for me but I can add that to the list too), this particular aspect of law has possibly run its course or is not applicable here (we already have plenty of taxes, small claims courts and other tests/warranties based on unit cost so I will throw that out as a potential jumping off point here).

 

[ThoD]

Considering it's literally internationally illegal to sell something marked as "new" without providing full warranty, it's about time someone did something about it. People buying new copies only to resell for higher prices without warranty is something that should stop already, been going on for too long and it's about time someone started fixing things. Also, don't forget that unlike licensed stores, "new" copies sold by individuals are also more prone to being in worse condition (eg: if the disk was near a heat source it could affect it's condition while still "new"), so they DO have a very valid point about wanting only licensed sellers provide new copies rather than every random guy there is! Unless you think cases where a "new" copy that has sat in who-knows-what kind of actual storage condition for a long time being sold as brand new is a good thing and doesn't profit people while carrying the risk of people paying for something that won't be in best possible condition...

 

[linkinworm]

This sounds more like a mixup in how people view products, if its still boxed sealed and unopened then technically yes its still new, but not new in the sense that its already a purchased item, people likely understand that its a "used" item but its still new in terms of packaging.

 

[The Real Jdbye]

They are protecting themselves. If the guy sells this game as new, if there was anything wrong with it, Bethesda could be sued, and the warranty for the item would still apply. Since it's still second hand (even if it's unopened) all of this is not applicable, but someone with bad intentions could buy the game and involve Bethesda in some legal conundrum. Not very likely to happen, and I'm pretty sure the guy hasn't any bad motives, so it's a bit harsh, but all he has to do is to change from 'new' to 'as new'.

Btw, title of the news is a bit misleading IMHO, they just told one guy to not sell one game advertising it as new. By reading the title it feels like the decision is general. But it's just my opinion.

I don't think it works like that. If anything they could sue the seller, but that's not worth it over a single game. Bethesda is not involved in this at all.

There's a common misunderstanding in the community regarding the terms. "New" refers to a product sold by an authorised retailer, a game purchased and re-sold by a third-party, if foiled up, is considered pre-owned in mint condition, or "mint" for short. You owned the license for the software and you are re-selling it, it's the second transaction the game is involved in, therefore it's pre-owned, sealed or unsealed. Bethesda is within their rights here as the product is in fact mislabelled, at least according to the first-sale doctrine. They're also correct in saying that ensuring the completeness of the set is a big deal, it is not uncommon for counterfeiters to open sealed game cases, replace the discs with CD-R's and resealing them, this is why both Sony and Microsoft implement physical protection mechanisms on their packaging - Microsoft uses a scannable seal while Sony uses their trademark PlayStation strip on the foil. This distinction is specifically applicable to software as you are not just buying a disc, you're effectively buying a software license - this makes all the difference, it's not like buying other goods.

Even if that's true, if the game is sealed, then the license has never been used. I don't think it's right to sell it as "like new" when that implies it's been used. Maybe there needs to be a new term to describe unused, unopened software. I think "new" is a fine term to use and anything else is liable to confuse the buyer, even if that's technically incorrect "according to the law". There is a big difference between preowned in mint condition and sealed and never opened and many people would prefer buying the latter.

 

[Foxi4]

I disagree that they need such a setup to ensure integrity. Such things I would say are more than adequately able to be handled by existing consumer protection infrastructure and site level protections.
If they want to have middlemen act as distributors or whatever then that is up to them (and I hate dealing with small numbers and the general public as well, logistics is not so bad for me but I can add that to the list too), this particular aspect of law has possibly run its course or is not applicable here (we already have plenty of taxes, small claims courts and other tests/warranties based on unit cost so I will throw that out as a potential jumping off point here).

They don't necessarily need it, but it's certainly handy in terms of limited liability.

I don't think it works like that. If anything they could sue the seller, but that's not worth it over a single game. Bethesda is not involved in this at all.

Even if that's true, if the game is sealed, then the license has never been used. I don't think it's right to sell it as "like new" when that implies it's been used. Maybe there needs to be a new term to describe unused, unopened software. I think "new" is a fine term to use and anything else is liable to confuse the buyer, even if that's technically incorrect "according to the law". There is a big difference between preowned in mint condition and sealed and never opened and many people would prefer buying the latter.

What do you mean by "used"? The license isn't a piece of paper in the box that you file with your other documents, it's a non-physical "right" you acquire at the point of purchase. Whether you use the software or not is immaterial, you are the legal holder of the license and the first buyer. You can choose to sell your license, and the disc along with it, which is the actual physical proof of your license, but that's a resale by definition, not a sale. You're not a distributor, you're a guy who bought a game at some point and wants to sell it. You don't need to invent a new retail term, we already have an appropriate one - "Mint". Software sales are older than both you and me and the current setup has been working perfectly fine for decades. This is simply an exaggerated response over an unintentional mislabelling issue.

 

[The Real Jdbye]

They don't necessarily need it, but it's certainly handy in terms of limited liability.
What do you mean by "used"? The license isn't a piece of paper in the box that you file with your other documents, it's a non-physical "right" you acquire at the point of purchase. Whether you use the software or not is immaterial, you are the legal holder of the license and a first buyer. You can choose to sell your license, and the disc along with it, which is the actual physical proof of your license, but that's a resale by definition, not a sale. You're not a distributor, you're a guy who bought a game at some point and wants to sell it. You don't need to invent a new retail term, we already have an appropriate one - "Mint". Software sales are older than both you and me and the current setup has been working perfectly fine for decades. This is simply an exaggerated response over an unintentional mislabelling issue.

What I'm saying is that mint is too broad, and it implies that it's been opened.
There's a price difference too.

 

[Foxi4]

What I'm saying is that mint is too broad, and it implies that it's been opened.

Why would it imply that and why are you so attached to the foil? Mint condition is pretty accurate - it describes an item to be in a condition equivalent to a brand new one, which is presumably all the information you want. Pre-owned isn't really confusing either - it's exactly what it says on the tin, owned previously by somebody else, presumably the seller. We don't call pre-owned games "pre-used", do we? You don't need that level of specificity. Pre-owned refers to the status of ownership, mint refers to the physical condition of the item in question. They're two different categories, the opposite of mint isn't pre-owned, it's used. It's not uncommon to see a mention of "signs of use" or a more specific term like "good" or "fair" condition in listings. There's no "price difference", you're the seller, you sell the item for whatever you think it's worth.

 

[The Real Jdbye]

Why would it imply that and why are you so attached to the foil? Mint condition is pretty accurate - it describes an item to be in a condition equivalent to a brand new one, which is presumably all the information you want. Pre-owned isn't really confusing either - it's exactly what it says on the tin, owned previously by somebody else, presumably the seller. We don't call pre-owned games "pre-used", do we? You don't need that level of specificity. Pre-owned refers to the status of ownership, mint refers to the physical condition of the item in question. They're two different categories, the opposite of mint isn't pre-owned, it's used. It's not uncommon to see a mention of "signs of use" or a more specific term like "good" or "fair" condition in listings.

Sealed games/consoles are worth more than mint condition ones. It matters more than you think.

 

[Foxi4]

Sealed games/consoles are worth more than mint condition ones. It matters more than you think.

They're not. All you have to say is that the game is "mint and unopened", job done - you're getting through the message that you are not an authorised dealer, but you are selling a product "as new". I can guarantee you that if you go to Gamestop right now to trade in one of your games, the first thing that's coming off is the seal - you're getting the pre-owned price because you're re-selling software and that's that. You can sell it privately for the full recommended retail price if you want, but you are mislabelling the product if you claim that it is new - it's not new, you owned it for a while and chose not to open it.

Imagine for 5 seconds that your game is a piece of chicken, it looks delicious and it's vacuum sealed. If you sell that same piece of chicken unopened 10 days later, it's not "new" or "fresh" chicken, is it? Not a perfect analogy since software isn't a perishable (most times - some software is as DLC codes have expiry dates), but it gets the point across.

 

[sarkwalvein]

This sound's fair. But the thread title looks like clickbait and will lead to misinformation.
I've already read some comments/reactions in this thread from people that seem to only have read the title, or to have misinterpreted the OP due to the title.
In the end, the title is completely wrong if you trust the text of the OP.
From the OP you can see that Bethesda is not blocking sale of used games at all, contrary to what the title says.
In any case Bethesda is blocking sales of "new" games sold by unauthorized resellers.
It might be legal mumbo jumbo, but all they are doing is stating "if you are going to sell something and you are not an authorized reseller, DON'T SAY YOU ARE SELLING IT NEW".

I.e. they are saying you should sell it as "used" all you want, they are not blocking sales of "used" games at all.

 

[FAST6191]

They don't necessarily need it, but it's certainly handy in terms of limited liability.
What do you mean by "used"? The license isn't a piece of paper in the box that you file with your other documents, it's a non-physical "right" you acquire at the point of purchase. Whether you use the software or not is immaterial, you are the legal holder of the license and a first buyer. You can choose to sell your license, and the disc along with it, which is the actual physical proof of your license, but that's a resale by definition, not a sale. You're not a distributor, you're a guy who bought a game at some point and wants to sell it. You don't need to invent a new retail term, we already have an appropriate one - "Mint". Software sales are older than both you and me and the current setup has been working perfectly fine for decades. This is simply an exaggerated response over an unintentional mislabelling issue.

This gets tricky. I don't want to falsely attribute a position to bethesda/zenimax that they do not hold, however if we look at arguments from industry spokesmen, lobbies and legal cases they make claims that make it unpalatable in the eyes of those wanting to roll with things. Now as said people in the list are lawyers or essentially lawyers (or puppets thereof) we can assume they will argue for a completely literal interpretation in one sentence and in the very next for a "spirit of the law" interpretation, possibly before arguing the sky is generally known as pink if doing so would help their case. Here I would be looking at all those "woe is us, these games are basically indestructible so special treatment" and arguments made for functional discs being the key when it comes to backups (if I buy a game, take a backup, snap the original in half and store the halves in my safe some have argued that the thing died with the original). This is also to say nothing of the fun and games with online passes and general fun and games they try to have with the second hand market (I can't believe for a moment that the "second hand is taking sales away therefore bad" thing arose and sticks within the game consuming masses unaided).

I would also say the software selling setup has not been "working fine". All those really fun court cases over resale, rental and the rights involved are very much within our lifetimes (and depending upon how old we are software selling itself might have been something we lived to see arise[/url]) and even ongoing to this day.

Similarly if a game can be chucked on a shelf (there are still those that don't keep it behind a counter), theoretically fumbled in its plastic wrap by any number of disgusting humans and still sold to me as new then something that is functionally identical, and if not functionally identical can see the person that sold it to me taken to task by any number of mechanisms, then it becomes hard to swallow that someone else can not do that. Licences as an abstract concept then need to be thrashed out, in my case I will typically lean towards the consumer and maximising their rights, amusingly the DRM systems so many companies seem to enjoy serving to aid the consumer in this as they presumably have clear times of first interaction. You say it is immaterial, I would argue it is anything but.

 

[The Real Jdbye]

They're not. All you have to say is that the game is "mint and unopened", job done - you're getting through the message that you are not an authorised dealer, but you are selling a product "as new". I can guarantee you that if you go to Gamestop right now to trade in one of your games, the first thing that's coming off is the seal - you're getting the pre-owned price because you're re-selling software and that's that. You can sell it privately for the full recommended retail price if you want, but you are mislabelling the product if you claim that it is new - it's not new, you owned it for a while and chose not to open it.

Imagine for 5 seconds that your game is a piece of chicken, it looks delicious and it's vacuum sealed. If you sell that same piece of chicken unopened 10 days later, it's not "new" or "fresh" chicken, is it? Not a perfect analogy since software isn't a perishable (most times - some software is as DLC codes have expiry dates), but it gets the point across.

True, but many people won't bother checking the description if they see it listed as used (or don't see it at all if they filtered to only show "new" games) and they're after a sealed copy.

 

[DinohScene]

GG Bethesda, GG!