Bethesda blocks sale of used game, claims it was to "protect buyers"

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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?

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Clydefrosch

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it is just wordplay but i see bethesda's POV. it isn't new, but this isn't bethesda's place to step in. the marketplace should be the one to handle that.

this is a like new, sealed copy.

it really is though. they kinda decide who's a trusted reseller, thus who is allowed to call it new and who isn't.
really, no one is being hurt here, he literally just has to slightly reword his sell
 
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mightymuffy

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In my opinion an almost dictionary definition of over-reacting, and the bad press Bethesda are getting is pretty much justified: could've been handled much better if they'd simply sent a kindly worded 'please rename your listing to sealed/as new' (or similar)

...Not long after the Fallout 76/Steam news either! Bethesda really aren't doing themselves any favours! :lol:
 
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Ritsuki

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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.

It's not about the license, it's really a question of warranty, status, and accountability for Bethesda. Maybe it works different in the US, but where I come from, as long as the game (or any object) is unopened, it must be in mint condition, otherwise you can ask for refund. Thing is, if the good was unopened, technically the shop have the rights not to refund it, because it was sealed, which means that the problem comes from higher. But if you're skilled enough, you can remove a game from its blister without damaging it (I've done it a few times), meaning that you could buy the game, put the box back in the blister, sell it again as new (meaning in the process that you are an authorized reseller instead of just being second hand, which is a totally different status with different rights), then when someone buys it and complains about it, the reseller could technically readdress the complaint to Bethesda, who would be obligated to refund or send a new copy because of the warranty. I really insist on the technically because it will never happen because Bethesda's legal team would crush the reseller, but even if it's the case it's still consume time, energy and money, even if they're sure to win.

But yeah, maybe it doesn't work like that in the US, we don't have the same legal system in Switzerland, their origin is completely different (our legal system is based on the Roman one, where the US system is called Anglo-Saxon system). I've only studied Swiss laws so I might be completely wrong, but usually, when it touches business or economy, we try to have the same rules to facilitate international trades.
 
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PvD79

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Bethesda is well in their rights to do this. However, their corporate attorney is not cheap and to go after a single individual selling just one copy is extremely heavy handed and seems to me to be a waste of time. How did they even find the time to find this sale in the first place? Or I should say, why was this such a priority to find the time for this? The companies are certainly showing their true colors as of late. Nothing more important than the almighty dollar...
 

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It's not about the license, it's really a question of warranty, status, and accountability for Bethesda. Maybe it works different in the US, but where I come from, as long as the game (or any object) is unopened, it must be in mint condition, otherwise you can ask for refund. Thing is, if the good was unopened, technically the shop have the rights not to refund it, because it was sealed, which means that the problem comes from higher. But if you're skilled enough, you can remove a game from its blister without damaging it (I've done it a few times), meaning that you could buy the game, put the box back in the blister, sell it again as new (meaning in the process that you are an authorized reseller instead of just being second hand, which is a totally different status with different rights), then when someone buys it and complains about it, the reseller could technically readdress the complaint to Bethesda, who would be obligated to refund or send a new copy because of the warranty. I really insist on the technically because it will never happen because Bethesda's legal team would crush the reseller, but even if it's the case it's still consume time, energy and money, even if they're sure to win.

But yeah, maybe it doesn't work like that in the US, we don't have the same legal system in Switzerland, their origin is completely different (our legal system is based on the Roman one, where the US system is called Anglo-Saxon system). I've only studied Swiss laws so I might be completely wrong, but usually, when it touches business or economy, we try to have the same rules to facilitate international trades.

I am amazingly versed in the Swiss setup but my previous interactions with Swiss IP law (which this would partially fall under) have it as being somewhat at odds with/unique when compared to a lot of the rest of the world and a quick scan of https://uk.practicallaw.thomsonreut...=(sc.Default)&firstPage=true&comp=pluk&bhcp=1 says while I recognise many concepts there are a lot of things that would catch me off guard (all intellectual property types being subject to forfeiture rather than just trademarks if you don't enforce them for one, need for use in the case of trademarks another as a lot of other places amount "keep paying the fees", software seemingly enjoying a different status within copyright law as it expires 50 years after death of the author and I see no mention of company owned works in that at least). Swiss consumer law I have no clue about at this point though, and given its odd status within European political bodies I can't assume things like I can when we all had a discussion about Portuguese consumer law I think it was.

Similarly legal traditions are a bit more complicated than that. Leaving aside Chinese, Indian, Islamic... stuff and going just for Europe then most of Europe is considered to have arisen from Roman legal code, the extent of its changes since then (as well as economics and power involved) giving us new things again (French and UK law despite being intertwined at points are rather different, Germany once it became a thing being another current player. The US then seemed to borrow a lot of what was then UK common law but modify it heavily with bits of French law and both French and German enlightenment thinking as well), though I suppose the common vs civil distinction is not entirely without merit.
 

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This is Bethesda we are talking about here, the same company that made a SKYNET game back in the day, just let that sit in your mind for a little bit, then remember these guy's are the same people who tried to sell you Mods for a game that has been re-released a million and one times now.

Your welcome for the answer.
 
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Ritsuki

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I am amazingly versed in the Swiss setup but my previous interactions with Swiss IP law (which this would partially fall under) have it as being somewhat at odds with/unique when compared to a lot of the rest of the world and a quick scan of https://uk.practicallaw.thomsonreuters.com/5-501-7998?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1 says while I recognise many concepts there are a lot of things that would catch me off guard (all intellectual property types being subject to forfeiture rather than just trademarks if you don't enforce them for one, need for use in the case of trademarks another as a lot of other places amount "keep paying the fees", software seemingly enjoying a different status within copyright law as it expires 50 years after death of the author and I see no mention of company owned works in that at least). Swiss consumer law I have no clue about at this point though, and given its odd status within European political bodies I can't assume things like I can when we all had a discussion about Portuguese consumer law I think it was.

Similarly legal traditions are a bit more complicated than that. Leaving aside Chinese, Indian, Islamic... stuff and going just for Europe then most of Europe is considered to have arisen from Roman legal code, the extent of its changes since then (as well as economics and power involved) giving us new things again (French and UK law despite being intertwined at points are rather different, Germany once it became a thing being another current player. The US then seemed to borrow a lot of what was then UK common law but modify it heavily with bits of French law and both French and German enlightenment thinking as well), though I suppose the common vs civil distinction is not entirely without merit.

Totally right, I didn't want to go too deep into the origins of law discussion since it's not really the subject here (even if it's a wonderful and very interesting subject, it's also wide and deep), but yes, it's a bit more complicated than that, even if in universities we usually learn those two families (Anglo-Saxon and Roman). German law is indeed also another type, but with the European union and everything, there are less and less specificities. We also have bits of German and French laws in Switzerland since historically the east part was German and the west part French (and the south part is Italian, but that's a bit off topic :P). But basically, in consumer law, they will try to find who's responsible in the chain of events, and Bethesda would be involved in the process since they're just before the reseller in the process (I'm excluding shipping companies, they're already covered by their insurance policies)
 

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Same could be said of consumer law in most places. How much do they care about it though? For instance despite protections for people featuring fairly prominently in the governing principles of the law then warranty law concerning modified devices recently received a clarification that modified devices are still under warranty unless the modification caused the fault, this despite the same ruling being made... decades ago for vehicles and there being nothing to say it did not apply outside it.
 

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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.



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.



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?

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I mean on eBay you have to bid on the item as for amazon you buy it outright but I really don’t agree with them in the terms of this but technically the game is new other also amazon is a different breed than eBay amazon is a store front eBay is a person
 
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ThoD

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Yay! More lawsuit threats! Seriously, I swear the use of lawsuits is becoming overused. "Oh, selling a game that you own and have the right to sell? Fuck off, have a lawsuit."
No one said he doesn't have the right to sell it, he does, what the lawsuit is about is that he branded it as "new", that's the entire reason. He can't label it as such unless it's from a verified official seller. Unopened or not, it IS a second hand copy.
 
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No one said he doesn't have the right to sell it, he does, what the lawsuit is about is that he branded it as "new", that's the entire reason. He can't label it as such unless it's from a verified official seller. Unopened or not, it IS a second hand copy.

Even so, the use of a lawsuit is unnecessary. Something like this could be handled with some negotiation without the threat. Threatening someone with a lawsuit right from the get go doesn't really make you look good. Makes you look like an asshole.
 

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What the ever loving hell?

First Bethesda can't even be bothered to effing finish a game they make. Now they want to block people from selling their games? Who's the ass clown that thought this was worth pursuing?

As if I needed any more reason to resent bethesda in the first place.
 
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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.
It's too bad the warranty only applies to the physical medium and not the quality of software, otherwise Bethesda would have gone out of business years ago. With any other item, the warranty is transferred with the item for the life of the warranty, no matter who sells it. In most cases it's as simple as having the item in your posession. Other times you may need a sales receipt, or at worst you may need to call customer service to transfer the warranty if the original owner already registered the product.

Bethesda has the right (within regional regulations of course) to set any warranty terms they want, but they do not automatically become law and grounds for litigation. It is Amazon's responsibility to ensure its vendors are complying with their terms of sale. Amazon's compliance department should have been Bethesda's first and probably only point of contact. From that point, Amazon would have either politely let the vendor know that they need to change the condition from new to like-new or sealed in box or something similar. They could have also changed the listings themselves or removed them entirely, to be re-listed with the correct terminology. Instead, let's go with frivolous lawsuits, and demanding removal of all Bethesda products, whether marked new, used, or broken. That is what makes the agenda quite clear, despite what their spokesperson claims.

It is no secret that publishers want used game sales gone. People forget that Nintendo made game rentals illegal in the United States for some time. Would you put it past the big publishers to try and end the used game market? Game companies are the biggest abusers of laws like the DMCA. They like to change the definitions of the laws and then feel they have the power to enforce those laws. They even managed to remain exempt when courts ruled that jailbreaking IOS and rooting Android was legal, despite hacking a game console being no different. They even extend this abuse into regions where they have established no legal presence or market.

What's this lawyer's name anyway? How can we be sure that their law degree is a legitimate product and that it hasn't been altered in some way? Are we certain it comes from an actual accredited law school? Is there a warranty that covers unsatisfactory legal services? Is Bethesda going to sue me for libel for voicing an opinion on an internet forum?
 

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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.
See what I mean, it keeps growing, the title is misinforming people.
Nowadays people just read the titles and skip article content, that's the way it is.
 

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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.
Gamestop does not just open one copy, they open every copy and when you buy the game, you bring a game case up to the counter where they dig a disc out of a drawer and put it in the case. They also encourage employees to take games home and play them so they are "knowledgeable" about the games. And then there was that fiasco some years ago when they were removing steam codes from valve games because that was competing with their own service.
 
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