Bethesda blocks resale of used game

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Sleighamorph
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PostBethesda blocks resale of used game
by Sleighamorph » Sat Aug 11, 2018 9:05 am

Bethesda recently sent out a notice to at least one seller on Amazon’s Marketplace who was trying to sell a sealed copy of The Evil Within 2, demanding that they remove their listing. That letter included a phone number for sellers of Bethesda’s games to call, suggesting that the company is sending out such notices to multiple sellers.

Philadelphia-based Ryan Hupp recently contacted Polygon to explain how he’d been forced by Bethesda to stop selling his copy of The Evil Within 2. He bought the game but never unwrapped it, he told us. He’d been expecting to purchase a PlayStation 4, but instead spent his money upgrading a gaming PC. Hupp said he often sells used goods through Amazon Marketplace, which works in much the same way as other online trading sites, such as eBay.

Bethesda’s legal firm Vorys sent Hupp a letter, which he forwarded to Polygon, warning that the game must be taken down and threatening legal action for non-compliance. In its letter, Vorys made the argument that Hupp’s sale was not “by an authorized reseller,” and was therefore “unlawful.”


So uh...apparently this is a thing now.

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PostRe: Bethesda blocks resale of used game
by Trelliz » Sat Aug 11, 2018 9:20 am

Thats always been in the EULA saying you aren't allowed to distribute the game etc, but i guess we're at the point where that's being actually enforced. I'm surprised EA didn't go first.

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PostRe: Bethesda blocks resale of used game
by Partridge Iciclebubbles » Sat Aug 11, 2018 9:39 am

Trelliz wrote:Thats always been in the EULA saying you aren't allowed to distribute the game etc, but i guess we're at the point where that's being actually enforced. I'm surprised EA didn't go first.


Just because it’s in the EULA doesn’t mean they have a leg to stand on legally. Plus if these are sealed copies then people would have seen/agreed to the EULA.

It’d be an interesting case if it ever went to court. I’d imagine Bethesda (or whoever) would lose, I can’t see that any court would rule that people cannot sell discs that they own.

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PostRe: Bethesda blocks resale of used game
by jawafour » Sat Aug 11, 2018 9:48 am

I vaguely recall reading that we don't actually own any game that we've purchased over the past ten years or so... I think the "licence agreement" says stuff like the game remains the property of the publisher, we can't do anything with it and we can only breathe if they say so. I have no idea if any /all of the clauses are legally enforceable, though.

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PostRe: Bethesda blocks resale of used game
by lex-man » Sat Aug 11, 2018 9:57 am

I was under the impression, at least in the EU they've upheld that you can sell second hand games.

https://www.eurogamer.net/articles/2012 ... aded-games

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PostRe: Bethesda blocks resale of used game
by Partridge Iciclebubbles » Sat Aug 11, 2018 10:30 am

jawafour wrote:I vaguely recall reading that we don't actually own any game that we've purchased over the past ten years or so... I think the "licence agreement" says stuff like the game remains the property of the publisher, we can't do anything with it and we can only breathe if they say so. I have no idea if any /all of the clauses are legally enforceable, though.


That would probably be legal for digital games, but there’s no way that we don’t own the physical discs.

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PostRe: Bethesda blocks resale of used game
by jawafour » Sat Aug 11, 2018 10:46 am

Moggy wrote:That would probably be legal for digital games, but there’s no way that we don’t own the physical discs.

True, Moggy. I've just read this TechRadar article about it; for download versions, we barely have any rights at all... the game(s) could be made unavailable at any time. I guess this situation is already here with the likes of the Wii Shop being closed for access and no doubt it'll hit a lot harder if, say, the PS3 and Xbox 360 digital stores were closed.

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PostRe: Bethesda blocks resale of used game
by Partridge Iciclebubbles » Sat Aug 11, 2018 10:49 am

jawafour wrote:
Moggy wrote:That would probably be legal for digital games, but there’s no way that we don’t own the physical discs.

True, Moggy. I've just read this TechRadar article about it; for download versions, we barely have any rights at all... the game(s) could be made unavailable at any time. I guess this situation is already here with the likes of the Wii Shop being closed for access and no doubt it'll hit a lot harder if, say, the PS3 and Xbox 360 digital stores were closed.


It’s the big downside of digital ownership. Hopefully the outrage it would cause would stop them ever doing it.

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PostRe: Bethesda blocks resale of used game
by KK » Sun Aug 12, 2018 10:45 am

Bethesda's quite ludicrous response:

"He's not trying to sell a secondhand game, he's trying to sell a new game," he told me. "He was listing the product as if it was new. All we're saying is if it's a previously owned product, you have to sell it as a previously owned product - you cannot represent it's new because we have no way to verify what you're selling actually is new.

"You could have opened it up, played it for five hours, taken whatever inserts or stuff was in there, put it back in shrink wrap and said, 'Hey this is new.' It's not new - you owned it, you bought it, so just list it as a used title. That's it, that's the end of the argument.

"We're not trying to stop anybody from selling used games," he clarified. "People sell used games all the time - we understand that, we're not trying to stop that.

"He, specifically, was trying to list it as a new product as if he was GameStop or Best Buy... He's not a company, he's not a distributor... and we don't want our customers buying stuff from a vendor like Amazon where they think they're buying a new product and suddenly finding out they got a disc that's been played, somebody kicked across the floor and scratched and 'oh they took out the insert that had the special items I was supposed to get for buying this'."

Hines said he was "sick of seeing stuff swirling around out there" and wanted to set the record straight.

"We are not trying to stop anybody selling a used game, we would never try and stop anybody from selling a used game," he reiterated. "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'.

"If you want to sell your copy of the game, it's 'pre-owned'. You can't say that it's new because I have no way to verify that, and ultimately that person is our customer we have to deal with and if there's stuff missing or things that have happened we're the ones that are going to have to make it right.

"You want to sell it as new, go to your buddy and say, 'Hey I haven't opened this copy, it's new, give me $60 for it.' If he buys it from you, knock yourself out, but don't go on Amazon and represent yourself next to a retailer who we know we shipped sealed product to and they're going to sell you an actual new copy of the game."

https://www.eurogamer.net/articles/2018 ... ame-seller

Remember that next time you buy a game from the high street and the disc and manual are taken out of a drawer.

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PostRe: Bethesda blocks resale of used game
by Rudolphin » Sun Aug 12, 2018 11:04 am

According to [Bethesda's Legal Firm], Hupp did not resell the game in its original form because it lacked a warranty you'd get if you bought the game from an authorised reseller.


What the strawberry float? That's some shady strawberry floating goings on and no mistake. Given the shedloads of negative press this has gotten, what do you want to bet this will never happen again?

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PostRe: Bethesda blocks resale of used game
by jawafour » Sun Aug 12, 2018 11:11 am

Bethesda... stop digging! :fp: :dread: :lol: .

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PostRe: Bethesda blocks resale of used game
by KK » Sun Aug 12, 2018 11:23 am

I don't think they'd have a leg to stand on in court, and they probably know it as well, but not many people I'd imagine would be willing to take it that far for what equates to a measly 30 quid.

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PostRe: Bethesda blocks resale of used game
by Hime » Sun Aug 12, 2018 11:43 am

How strawberry floating stupid. Bethesda have built up a lot of good will with the games they've put out of late and they've just strawberry floated themselves by doing this. I guess it's the problem with these companies getting so big, the legal teams try to enforce this bull gooseberry fool with no care or understanding of the industry and how it will affect their image.

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PostRe: Bethesda blocks resale of used game
by Rudolphin » Sun Aug 12, 2018 1:35 pm

Their parent company zeniMax is notoriously litigious. This isn't the first time they've pulled something like this.

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PostRe: Bethesda blocks resale of used game
by Yulehide » Sun Aug 12, 2018 4:47 pm

Why even bother getting the seller to remove the listing?

They've already been paid for the sale of the game so I really don't understand why they'd care that the original purchaser sells it to someone else when they haven't even used it once, reselling an unused product has absolutely zero negative impact on the original manufacturer.

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PostRe: Bethesda blocks resale of used game
by HSH28 » Sun Aug 12, 2018 11:02 pm

Don't see the problem with Bethesda asking the guy to list it as something other than new.

I mean it seems like an awful lot of trouble to go to, but I don't get how its an issue for the guy selling the game. Technically even if he hasn't opened it, it is second hand.

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PostRe: Bethesda blocks resale of used game
by Manwell Pablo » Mon Aug 13, 2018 10:06 am

HSH28 wrote:Don't see the problem with Bethesda asking the guy to list it as something other than new.

I mean it seems like an awful lot of trouble to go to, but I don't get how its an issue for the guy selling the game. Technically even if he hasn't opened it, it is second hand.


Agree.

I mean the main talking point is you would of thought the good people down at Bethesda would have better things to do but than this but still they are not incorrect, should be "like new" as minimum.

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PostRe: Bethesda blocks resale of used game
by Yulehide » Mon Aug 13, 2018 2:29 pm

Surely it should be Amazon who Bethesda are directing this at, not the seller.

Sites like Ebay and Amazon should be making it clear that all resold items are classed as 2nd hand unless sold by an approved reseller and as such the original manufacturer is in no way responsible or liable for the condition of the item.

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PostRe: Bethesda blocks resale of used game
by KK » Mon Aug 13, 2018 4:09 pm

I don't know about the USA, but how Amazon UK defines "NEW" and "LIKE NEW" on their website for videogames and DVDs:

NEW: A brand-new, unused, unopened video or DVD in perfect condition, in its original packaging and with all original packaging materials included.

LIKE NEW: an apparently unopened video or DVD in perfect condition (although it may be out of its original wrapping). The box or DVD case is clean and vivid, with no signs of wear. Any codes for digital copies or downloadable content included in the item have not expired and have not been redeemed. Suitable for presenting as a gift.

Therefore by Amazon and the retailer's very own definition, the game is New. It's the same principal as any independent retailer or newsagents who sources a substantial amount of their goods not direct from the manufacturer, but from wholesalers like Costco or maybe even from another conventional shop.

Bethesda trying to redefine what New is in their own eyes, but certainly not in the eyes of either the law in this country or the retailer themselves.

Factory sealed product: Not new.
Opened product sold in GAME out of a drawer: New.

It's farcical. Had the game not been in a state which Amazon themselves deem to be New, the buyer could have taken it up with Amazon for a refund. At no point is this Bethesda's business. A few years ago some manufacturers weren't happy that their products were appearing in Poundland. But guess what? Tough gooseberry fool. In fact there are sealed Blu Ray discs in there right now for a quid. Are you going to tell me they're not new? Of course not. You presumably have working eyes.

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PostRe: Bethesda blocks resale of used game
by Johnny Ryall » Mon Aug 13, 2018 7:23 pm

The argument is a load of crap when the guy is going through amazon who would uphold any complaint about the disc being damaged and have built a large part of their business around being an eBay competitor.

If the guy was say selling it on his twitter then maybe that argument would work but even then wow you are getting into fine semantics over what really is Zenimax trying to reclaim lost revenue. This hurts them more than it helps them once you have that reputation of being anti consumer it's hard to shake it. Like they are wanting to push people on to the bethesda launcher on PC, why on earth would anyone use that to buy games after reading this?


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