Game developers and publishers have often been opposed to used game sales in the past. Who can remember the introduction of the online pass by many publishers last generation in an attempt to curb the practice? However, Bethesda may have pushed the issue one step further by threatening legal action against a game reseller on Amazon. According to Polygon, Ryan Hupp, the reseller, received a letter from Vorys, Bethesda’s legal firm, demanding that he take down his listing for a new, secondhand copy of The Evil Within 2.
The letter stated that Hupp must take down the listing or Bethesda would take legal action against him arguing that the listing was not from “an authorized reseller,” making the listing “unlawful.” They also argued that there was “false advertising” in the listing due to Hupp’s description of the unopened game as “new.” The letter also included a phone number for recipients of the letter to call, indicating that Hupp is likely not the only one to receive such a notice from the publisher.
Hupp did take down the listing, but he responded to the letter with an argument stating that game resales are protected in the US by the First Sale Doctrine. This law states that customers can resell games (as well as other copyrighted items such as books or DVDs) as long as they are not significantly altered from their original form. However, Bethesda claims that the sale would not be covered under the First Sale Doctrine because it would lack a warranty, making it “materially different from genuine products.” The letter went on to state: “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.” The letter also stated that such a lawsuit would seek “disgorgement of profits, compensatory damages, attorneys’ fees and investigative and other costs.”
Speaking with Eurogamer at QuakeCon, Pete Hines, senior vice president of marketing and communications for Bethesda, offered the publisher’s side of the story. According to Hines, Bethesda’s issue with the listing was that it was described as being “new” on Amazon, and customers (and Bethesda) have no way of knowing if the game is truly new or if it has been played and then shrink-wrapped after-the-fact; he said that it would have been fine if the game had been listed as “used” or “pre-owned.” He later stated:
“We are not trying to stop anybody selling a used game, we would never try and stop anybody from selling a used game. We do have an issue with people representing they are selling a new copy of the game when we have no ability to tell it is actually new, so we aren’t going to allow somebody to say ‘this is new'”
— Pete Hines
Personally, I can see where Bethesda is coming from on the issue; for many customers, seeing a game listed as new on Amazon tells them that the game is coming straight from the publisher via official channels, which may not be true. However, Bethesda probably went overboard with their reaction to the listing. Perhaps a request to alter the listing to use the “pre-owned” description would have better.
So, what do you guys think? Do you agree with Bethesda, or do you think that the reseller was in the right? Let us know in the comments below!