Bethesda Blocks Resale of a Secondhand Game (polygon.com)

theshowmecanuck writes: Bethesda just pulled a cease and desist on an Amazon Marketplace sale of one of their games. This, despite the fact that the resale of used games is legal in the USA. Bethesda is saying that because it isn't being offered with a warranty, it is not protected through the First Sale Doctrine. UPDATE: The game in question was sealed and unopened, technically not "used," but being sold secondhand. In a letter sent to the seller by Bethesda's legal firm, they made the argument that the sale was not "by an authorized reseller," and was therefore "unlawful." Bethesda also took issue with the seller's use of the word "new" in selling the unwrapped game, claiming that this constituted "false advertising."

Bethesda offered the following statement: "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."

Comments

Soon you won't be able to play secondhand games

[Anonymous Coward]

So enjoy it while you can.

Re:Soon you won't be able to play secondhand games

[Presence Eternal]

You guys gotta help me. I tried to sell some scrolls I made, and now they're threatening to take my house. That I built with my own two hands by punching trees.

Re:Soon you won't be able to play secondhand games

[houstonbofh]

Sure you can. TPB

Re:Soon you won't be able to play secondhand games

[Anonymous Coward]

They are aiming to rent.

Shrink-wrap

[Anonymous Coward]

Note that every store worth a damn has a shrink-wrap setup in the back. Being 'in the wrap' means nothing. AC

Re:Shrink-wrap

[Anonymous Coward]

Usually when I've seen games shrink wrapped it was quite obvious that the manufacturer had done it because there were barcodes and such rather than simple shrink wrapping.

It's been years since I saw any software that came in a box where the shrink wrap didn't have some sort of a specific sticker on it. And usually a secondary seal once the shrink wrap was opened.

Re:Shrink-wrap

[Actually, I do RTFA]

That's why they have holographic stickers you have to break to open with case.

Re:Shrink-wrap

[Hodr]

Not to mention new games don't come in shrink wrap, they come with a shinier plastic that is folded and heat sealed, but not shrunk.

Shrink wrap is thinner (easier to damage), less slippery, and has a characteristic seam where sealed.

Re:Shrink-wrap

[fedos]

You can tell the difference between the original shrinkwrap and the store's shrinkwrap.

Easy mistake to make

[AnotherAnonymousUser]

To the average consumer, "new" stipulates that it hasn't had a previous owner use it and that it's still shrink-wrapped. If you search through sites like eBay, you'll find this to be the case as well. In the eyes of the law, it might hold a different definition, but it doesn't necessarily fall in the category of second-hand, which might include a degradation of value. It's still a new, sealed item, and when your selling platform is open to the average consumer, then the tendency is probably going to be for the seller to post it as "new", as that's what their own personal understanding on what "new" is. This seems a highly aggressive stance for Bethesda to be taking, but they're commonly known to be more litigious than many of their other counterparts in the industry.

Re:Easy mistake to make

[Anonymous Coward]

unused might eliminate any mention of "new"

Re:Easy mistake to make

[Anonymous Coward]

Nah, this is over-enthusiastic Bethesda lawyers trying to scare someone.

If it ever gets to a court, it'll be laughed out.

Re:Easy mistake to make

[sjames]

Unfortunately, because court is a bit like roulette with a multi-thousand dollar buy-in, they'll likely get away with it.

Re:Easy mistake to make

[Hognoxious]

You can argue either way as to whether it'd deceptive or not to call it "new"; personally I'm on the fence about that.

However, I'm far from being convinced that it concerns anyone other than the buyer and the seller.

Re: Easy mistake to make

[Anonymous Coward]

Youâ(TM)re talking semantics.
Bethesda is saying that since they canâ(TM)t guarantee they know who is selling it, that it is not being sold by an authorized reseller, it has been sold once already and isnâ(TM)t new.
I understand what youâ(TM)re saying but, itâ(TM)s the same crap with Hampton bay ceiling fans. You can buy them new at Home Depot but, if you buy a âoenewâ one on Amazon, Home Depot is not going to honor any sort of manufacturer warranty when you call and say you bought it on amazon.
If you are resolving crap on amazon, you should say âoenever openedâ, not NEW.
I understand what youâ(TM)re saying but, I kind of agree with Bethesda.

Re:Easy mistake to make

[Anonymous Coward]

Their brand reputation might take a hit if the buyer believed they were buying new and ultimately discovered it was not. Of course you'll argue that the ensuing fight is between the buyer and seller, but it could spill out to the manufacturer.

Re:Easy mistake to make

[houstonbofh]

Kinda... But what about customers they drive away? I do not support shady companies.

Re:Easy mistake to make

[Anonymous Coward]

"New Old Stock". A completely acceptable way to market things and has been a term used for generations.

It would be illegal to sell anything as new old stock if you were correct. After all, it implies the manufacturer is defunct or the stock has otherwise expired in the manufacturer's eyes.

Re:Easy mistake to make

[pots]

In the eyes of the law, it might hold a different definition

I'm not an expert, but that doesn't seem to be the case. Also, that's not really what Bethesda is claiming here. They're not saying that they're doing this because the product isn't new, they're saying they're doing this because they don't know whether or not the product is new. In other words, they're divesting the seller of any responsibility and trying to seize control over the entire sales chain.

There's a question of why they'd be doing this. I'd imagine it's because they've gotten on board the software activation bandwagon, and this is a way to reduce the resulting support costs. It could also be about branding - with the Fallout case they showed themselves to be very sensitive to maintaining full brand control.

Regardless of the reason, the important thing to note here is that Bethesda is a horrible company and people should stop giving them money.

Re: Easy mistake to make

[Anonymous Coward]

Not likely though. Very few are stupid enough to use one mans scam and blame the company that had absolutely no control over it.

Re:Easy mistake to make

[BlueStrat]

Kinda... But what about customers they drive away? I do not support shady companies.

If you've not already dropped Bethesda for all their previous actions and behaviors, the chances that *this* is finally the last straw are...slim.

Of course, the same could be said about a disturbingly-large percentage of all the other major game development companies as well, sadly.

Strat

Re:Easy mistake to make

[bickerdyke]

Why should someone, who receives a mint condition, shrink wrapped and sealed item complain about not getting a "new" one?

Re:Easy mistake to make

[JaredOfEuropa]

They'd complain if they open the package and it turns out that the manual is missing and the DVD is scratched and unreadable. And since the buyer bought it as "new", they might well direct their complaint at Bethesda, who have no way of verifying that the seller didn't open, damage and re-seal the contents. That is not an unreasonable objection, even if Bethesda are making a rather big deal out of it.

Re:Easy mistake to make

[bickerdyke]

I doubt that.

When I buy something online and the seller tries to slip me an obviously "refurbished" thing, I'll complain with the seller and not the manufacturer.

Re:Easy mistake to make

[Cryacin]

So... do we call it "mostly new"? As in would you like to buy a "mostly new watch"?

Re:Easy mistake to make

[mysidia]

This seems a highly aggressive stance for Bethesda to be taking

If the sale is legal by first-sale, then Bethesda have absolutely no business nor any legal basis for saying how the seller can or can't represent their wares; if the seller describes it as "NEW", and that's because the product was never used -- then fine, that is legal; Nothing gives the publisher any right to interfere with the sale or to try and force the seller to represent the good's condition in a different way.

Re:Easy mistake to make

[AmiMoJo]

"Brand new in box" (BNIB) is a pretty common description of goods that have had possible several previous owners, but which are unused and unopened.

Even in shops some of the stuff sold as "new" will be stock from other shops that went bankrupt or are just doing stock rotation.

Re: Easy mistake to make

[Anonymous Coward]

Before telling others what to do, at least CHECK AMAZON first. There are NO OPTIONS to sell in UNOPENED category on amazon, because it does not exists. There is NEW and USED only and if it is good for BOOKS and other merchandise, so it is with PACKAGED PHYSICAL MEDIUMS of GAMES. As far as I understand, that is not second hand game, but unsold merchandise.

Re:Easy mistake to make

[Anonymous Coward]

' but they're commonly known to be more litigious'

Let me correct you a little:
' but they're commonly known to be dicks'

Re:Easy mistake to make

[houghi]

The "degredation of value" has nothing to do with it. Value is determined between the seller and buyer. The fact that this is new, unwrapped, old , used or whatever might influence the seller and/or buyer, but that is irrelevant.
And no matter what the company says, it is not theirs anymore, so they have no say over it. I post this after the update.

Re:Easy mistake to make

[Type44Q]

In the eyes of the law, it might hold a different definition...

Rest assured it does not. (While I'm certainly Not A Lawyer, I'm not so sure that Bethesda's "attorneys" are, either.)

Re:Easy mistake to make

[Anonymous Coward]

You use 'like new' or 'like new with tags'

Re:Easy mistake to make

[Anonymous Coward]

"Like new" implies open box.

Re: Easy mistake to make

[Anonymous Coward]

They're making games. I could care less if they had unicorns chained up to poke holes in the Discs.

Now let me know when they start manufacturing Chemical warfare agents.

Re:Easy mistake to make

[Killall -9 Bash]

the important thing to note here is that ________ is a horrible company and people should stop giving them money.

Fill in the blank with any major game studio.

Re:Easy mistake to make

[nasch]

"...mint condition..."

"... the manual is missing and the DVD is scratched and unreadable..."

Uhhh, that's not mint condition.

Re:Easy mistake to make

[Anonymous Coward]

This is Bethesda abusing the ambiguity of language. They're confining "New" to a definition of just created and released, direct from original producer, but it's well understood that in any resale market, "New" doesn't refer to chronologic release or direct from producer, only that the device has not been used. I suppose it's true; nobody can truly prove that something resold is unused. Time to shut down Amazon and eBay. I'm reminded of when they sued Mojang for making a game called "Scrolls" since they already had a game called "Elder Scrolls." The way their lawyers attack the English language just gives me a headache. Let's just replace "new" and "unused" with a made-up word on every resale site so Bethesda's lawyers can't litigate language again.

Re: Easy mistake to make

[BlueStrat]

They're making games. I could care less if they had unicorns chained up to poke holes in the Discs.

Now let me know when they start manufacturing Chemical warfare agents.

Did it ever occur to you that the precedents set regarding their actions & behaviors towards their customers do not apply solely to, nor are restricted to being employed solely by, the game industry? Look at DRM. If they can get away with shit, others will see that and say "Hey! Let's do that too!".

For the love of Dog! Think, man, think!

Strat

Re: Easy mistake to make

[lgw]

They're making games. I could care less if they had unicorns chained up to poke holes in the Discs.

Now let me know when they start manufacturing Chemical warfare agents.

Encouraging gambling addiction in kids isn't on your moral radar? Fortunately there was a legal backlash against that one.

Re:Easy mistake to make

[Anonymous Coward]

Unopened.

(i.e. I x-rayed it and took out the valuable 16 character code)

Re:Easy mistake to make

[Nov8tr]

I agree with you on this. There is far more than enough precedent cases that have already settled on this matter. The court would consider Bethesda's case a moot point of law. They would lose before the suit even started really. This is actually a case of extreme greed. It is so obvious they might as well post neon signs above their head. Sad....... but not surprising.

Re:Easy mistake to make

[tehcyder]

I doubt that.

When I buy something online and the seller tries to slip me an obviously "refurbished" thing, I'll complain with the seller and not the manufacturer.

Depending on what you buy, you may have the expectation of a manufacturer's warranty.

If I bought, say, a new/boxed smartphone from someone on ebay and it exploded when I plugged a charger in, I would certainly expect the manufacturer to replace it or refund me, not the seller. But the problem would be if the seller had actually opened the phone and done some sort of bodge job on the electronics that caused the problem and voided the warranty.

Re:Easy mistake to make

[bickerdyke]

I have no idea how the exact laws are in the US, but in the EU manufacturers warranty is something absolutely voluntary.

The seller took your money, he is responsible for giving you a defect free device. So even if your smartphone explodes, it's up to the seller to repair, replace or refund (he gets the first pick) Private sales (garage sales) are exempt from that, so if you got it from "some dude on ebay" you may be right contacting the manufacturer, but his warranty is completely voluntarily (if he wants to extend the sellers warranty) and subject to his terms. So you can't "expect" anything at all from him.

Sellers of used goods are explicitly not automatically exempt from their warranty, but have options to limit it by contract/TOS.

Re:Easy mistake to make

[fedos]

The law firm that they're using for this is apparently very active in trying to get rid of the first sale doctrine.

Yet another reason to avoid Bethesda

[Ritz_Just_Ritz]

It's laughable that they are trying to somehow dry up the game aftermarket for their titles and then shucking and jiving around what the meaning of "is" is.

Wake me up when they go tits up.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

Bethesda will only be decent if separated from Zenimax.

Re: Yet another reason to avoid Bethesda

[ravenshrike]

*sniff sniff*
I smell a shill. Bethesda are a bunch of cheap asshole shysters. This has been patently obvious since their complete lack of QA on Fallout:New Vegas and probable subsequent manipulation of the Metacritic score.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

The only way to get the message to rogue corporations, is to stop buying their products. The problem lies in getting everyone to do it, not just 1% or 5% of potential buyers.

Re:Yet another reason to avoid Bethesda

[blahplusplus]

It's laughable that they are trying to somehow dry up the game aftermarket for their titles and then shucking and jiving around what the meaning of "is" is.

Wake me up when they go tits up.

Not going to happen, the average gamer is a fucking moron. The last 20 years of PC gaming we've seen a shift from games we owned and controlled to games companies own largely because gamers are morons and technologically illiterate. The fact that mmo's and f2p microtransaction games even exist is proof the average person on our planet is a moron.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

No, you are absolutely incorrect. New Old Stock is a real thing in sales.

Bethesda must be getting funding from someone else to try to drive the courts
in this way. Consider Disney collectibles; does Disney want to enforce how
these are sold by private collectors (many collectors never open the package
or break any seal on the product). Or Lego / Mattel / Hasbro and hundreds of
other manufacturers who want to profit beyond the first sale of the product.

Unfortunately, the First Sale Doctrine does not provide a remedy when companies
like Bethesda decide to ignore it and harm a legal sale of a product they no longer own.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

"Bethesda will only be decent if separated from Zenimax."

uh no. We know when google does something bad we blame it on google not alphabet so why the fuck would you fall for bethesda;s pr trick and blame zenimax instead of bethesda?

Bethesda to Zenimax is the EXACT same as what Google is to Alphabet.

Wake up!

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

Don't forget preorders and kickstarters run by unknown people and paid early access/beta.

And fuckin' paid dlc's for stat changers.

Re:Yet another reason to avoid Bethesda

[Calydor]

Did Alphabet buy the Google we used to know?

Did Zenimax buy the Bethesda we used to know?

Did Activision buy the Blizzard we used to know?

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

You have no idea whats being discussed. Alphabet and google are the same company but structured as two. Zenimax and bethesda are the same company but structured as two. Blizzard and activision each existed for a long long time completely separately before merging. It is nothing alike. Go look up the origins on zenimax and alphabet.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

I would have thought that this might also be addressed by the seller as "tortious interference" - see https://en.wikipedia.org/wiki/Tortious_interference - it seems to fit the bill for me ("one person intentionally damages someone else's contractual or business relationships with a third party causing economic harm"). I know that's a thing in Australia and I assume it's in the US too.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

Welcome to the glorious world of cloud computing - you own NOTHING but you still have to pay.

Re:Yet another reason to avoid Bethesda

[tlhIngan]

Not going to happen, the average gamer is a fucking moron. The last 20 years of PC gaming we've seen a shift from games we owned and controlled to games companies own largely because gamers are morons and technologically illiterate. The fact that mmo's and f2p microtransaction games even exist is proof the average person on our planet is a moron.

Surprisingly, when Microsoft tried to do what happened on the PC, everyone objected. And Microsoft offered the chance to resell your used digital games It forced Microsoft to backtrack on the whole thing and redo their DRM system.

Of course, a few years later everyone hates discs and wants digital, so it appears not only do we end up where Microsoft wanted us to be, we've lost all the features they were going to add.

Re:Yet another reason to avoid Bethesda

[JaredOfEuropa]

Meh. Most people prefer the convenience of online game stores like Steam. There's always the risk of the platform going under leaving you without the ability to play your games, but for many people that risk is small since they tend to play games for a couple of months or years and then move on to other stuff. If those 10 year old games won't run anymore, only a handful of people will notice. I'm well aware of the issues, but I've bought pretty much all of my games in the past few years from online services.

My main issue with Steam is the restrictions they've placed on multiple installations and family sharing: if you log into Steam on one machine, you are logged off at all the others. But I should be able to run 2 or more different games on different computers, whether those games are on my account or in the family sharing scheme (putting Steam in offline mode may get around that in some cases)

Also, MMO's are fun. What's your issue with them? For them amount of time subscribers spend playing them, they provide pretty good value for money even with a monthly subscription.

Re: Yet another reason to avoid Bethesda

[Anonymous Coward]

There wasn't any value in what they were adding.

They made a system that charged you for the privilege of selling a digital license file. A proper system would have been something like a paypal transaction and transmission of said file to the buyer like a physical game sale. But because these license files are signed in such a way that only the account / system that bought it can use it, there is nothing to sell.

Microsoft has to make a new license file each time the game is sold, and Microsoft and the publisher would get a cut of the profits to do so. That's money you can't make up by charging more, it's money you didn't have to give them previously with physical copies (which are signed to run on any system), and it's money you, or the original purchaser, paid them already. In other words, they want the ability to charge you for the "privilege" of selling a used game.

Only the media industry tries to pervert the laws and rules of commerce so much in their favor. I'm surprised our paychecks aren't just levied an existence tax for just knowing about something they've made.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

I don't want microsoft managing my keys. They have a long history of abandoning distribution platforms. I like the idea of reselling used digital games in a real market place (not just back to microsoft). I would like to be able to move a game license from one steam account to another steam account or transfer a license from steam to gog. None of these things is what microsoft was offering so I don't feel we missed anything.

What we really did avoid however was microsoft trying to bring the subscription fee model to online pc gaming. I'm glad they got blasted really hard for trying that.

Re:Yet another reason to avoid Bethesda

[Anonymous Coward]

> Welcome to the glorious world of cloud computing

SaaS != cloud.

Re:Yet another reason to avoid Bethesda

[cthulhu11]

But are the other places in Maryland okay? Baltimore is kind of scungy too.

Re:Yet another reason to avoid Bethesda

[catprog]

https://store.steampowered.com...

This requires you to be logged in on two computers by design.

Re:Yet another reason to avoid Bethesda

[tehcyder]

Also, MMO's are fun. What's your issue with them? For them amount of time subscribers spend playing them, they provide pretty good value for money even with a monthly subscription.

You can't download a pirate copy and 'try it out' for a couple of years.

What A Crock Of Shit

[Anonymous Coward]

Amazon has tools to allow companies like Bethesda to report bad sellers. Bethesda could have simply used those tools and had the listing taken down. Instead they get the lawyers involved as a scar tactic to further scare other potential sellers away ensuring that more new copies are being sold, not already bought copies.

Bethesda's claims have no merit. Afraid of the game being not new? Amazon has protections in place for that. If the seller takes your money and runs? Amazon has protections in place for that. The game just doesn't work? Amazon has protections in place for that.

Honestly, fuck Bethesda. They rarely make good games. What they make are large games that are easy enough to mod for others to make their games fun.

Re:What A Crock Of Shit

[Bert64]

Since the game *was* new, shipped in its original shrinkwrap having never been opened, Amazon wouldn't have done anything - nor should they.

Re:What A Crock Of Shit

[thegarbz]

Instead they get the lawyers involved

I doubt it. Sounds more like a bored lawyer gone rogue than an active decision by a company. It takes a lawyer to do something so mind bogglingly stupid.

Re:What A Crock Of Shit

[Anonymous Coward]

Afraid of the game being not new?

Dark nets are getting bigger. Best thing is, nobody really knows how big they are. Already.

Re:What A Crock Of Shit

[Anonymous Coward]

Honestly, fuck Bethesda. They rarely make good games. What they make are large games that are easy enough to mod for others to make their games fun.

Really? I'd give them a 75% on the percentage of games they make that are good or better. Fallout 3/New Vegas/4 and Skyrim are quite fun unmodded. Doom was pretty damn fun. It's not my genre, but The Evil Within has been popular. The mods certainly add to their games that support them, but there are some mods that a niche of people like that I would hate in a game. I actually like the Bethesda usually provides a solid base game that stands well on its own and allows mod support for those who want to extend or customize things.

Third pary sellers are scums

[Anonymous Coward]

I wish amazon would ban all third party sellers

Re:Third pary sellers are scums

[The New Guy 2.0]

The 3rd party sellers that offer Prime Shipping are as good as Amazon's own sales department... but used items in the world of computing just don't add up... and I don't want thieving parents to be able to sell the items their kids aren't using. EBay is filled with such auctions and Gift Card Rescue keeps selling stolen gift cards, but Amazon is good at keeping new items.

And as the story was modified at the top, this sale sure should be pulled because the seller marked New for a Used item.

Re:Third pary sellers are scums

[Anonymous Coward]

Amazon sells plenty of stuff that has been sent back to them as "new". New doesn't mean it has not changed hands before, just that it hasn't been used.

Re:Third pary sellers are scums

[Anonymous Coward]

If you're referring to the modification I see (things could have changed from when you posted this), the game *is* new.

"New" doesn't mean it comes from a specific store, an 'authorized' reseller, and the list goes on. New means -- not used. This definition at dictonary.com is apt:

"fresh or unused"

If it is in its original shrink-wrapping, unopened? It's new in terms of how that word is used, in that context.

And what's with the whole 'thieving parents' crack? Kids don't actually own anything, you realise that right? And if you think about it like a rational adult, you'll realise that kids are provided clothing, food, heat, electricity, medicine, and thousands of other things -- all without, you know, "paying" for it.

And if the adult/guardian in question doesn't do so, they can be charged under many circumstances.

How would 'hand me downs' work, exactly.. if the child could block the parent from handing clothes to the next offspring? Great. Thanks. Now the parent has to buy clothes for Jim, while selfish little Johnny keeps his perfectly good but outgrown clothes forever.

And I guess the child's room is theirs forever too.. because they're tenants, right?

Children aren't "little adults". They're underdeveloped, both mentally and physically, can't take care of themselves, and require a guardian to take care of them.

There are legal ages when children become adults. Where I grew up, 14, 16, 17, 18, 19 and 21 all marked differing 'things' you could do, like owning land/property at 21. Or, being an 'adult' at 16. Or financially independent at 18, so your parents are no longer fiscally responsible for you.

What kind of world do people live in, I wonder -- where they think a child 'owns' things, but (probably) know that if a 10 year old child burns down a house, the *parents* are financially liable?

So not only do the parents have to support a child, they are also fiscally responsible if that child damages other property.

Some people!

Re:Third pary sellers are scums

[suutar]

Amazon's guidelines (currently) specify that for an item to be called "new" the original manufacturer's warranty should still be applicable. Otherwise, the best option is "Used - like new". I had not realized this before; my understanding was pretty much "new = still in shrinkwrap" and there was no warranty (after all, the verbiage "no warranty expressed or implied, including fitness for purpose" is pretty standard). I suppose the warranty is that if the disk is physically damaged you can get a replacement. *shrug*

Re:Third pary sellers are scums

[Cinnamon Beige]

If it's still in the original shrink wrap and all, it's new, and for all you know somebody's selling off an extra--this happens when your family is just aware enough that you're a gamer to buy you games, but not so together as to make sure that they don't all buy you the same game...or buy you a game you already own...or buy you a game you can't play because you don't own that particular system...or a game that you'd sooner play X-17 than this.

Not all preowned games are being sold by 'thieving parents,' either. Some are being sold because gamers are culling their collections, dispersing a dead gamer's collection, or the game just plain doesn't have enough replay value to justify not selling it off to make space for another game.

Re: Third pary sellers are scums

[ravenshrike]

Gcr has been shuttered since 2016.

Re:Third pary sellers are scums

[Anonymous Coward]

So you want baby toys to stick around filling up people's houses until the kid who played with them dies of old age? WTF is wrong with you. Used items are how the lower middle class and everyone beneath them survives.

I don't know specifically about Gift Care Rescue, but I can tell you how some other sellers sell gift cards. If you're willing to read terms of service contracts and watch for sales, you can make a profit selling them at or just below their face value. You use a store credit card on one of the days they have double-bonuses along with an affiliate link and free shipping deals. You end up selling the gift cards at near cost and you earn you profit from all the awards you've chained together. It's like a game, seeing how many offers you can chain together to increase your profit. Like the super coupon people. It works, but there are lots of scam buyers who use the card then try to return it claiming it didn't have a valid number.

Re:Third pary sellers are scums

[Anonymous Coward]

A childs property may belong to the child, but the parent most certainly has the right to take their stuff away from them. Found a lawyer to tell you that as well. As long as the child is being cared for with respects to necessaties like a place to live, and food to eat, then the child's possessions are only theirs at the whim of the parent/guardian.

So yeah, when your parents confiscated your stuff from you for sneaking out of the house... it wasn't stealing there sluggo. By the way, mom says clean your room, or your losing the xbox again.

https://www.avvo.com/legal-answers/is-it-legal-for-a-parent-to-take-away-an-item-from-383634.html

Re:Third pary sellers are scums

[Anonymous Coward]

I don't want thieving parents to be able to sell the items their kids aren't using.

Aww, what's wrong? Did your mother sell your video game "collection" in an attempt to get you to leave the basement and get a job? You seem a little sensitive about this matter...

Are their lawyers just bored or something?

[rsilvergun]

This was bound to cause some blowback from the community (not a lot though, Bethesda, like Blizzard, could shoot somebody in Time Sqaure on live TV and get away with it). Meanwhile there's no upside to it. Can anyone think of any reason to do this?

Re:Are their lawyers just bored or something?

[Anonymous Coward]

Sure thing. If they don't, they run the risk of anyone selling repackaged games as new. Or fake copies. If you don't protect your interests you run the risk of losing them later.

The seller was dumb. Just say pre owned, like new, still in original shrink-wrap. Buyers are unlikely to care anyway.

And except for the 24/7 outrage machine on the internet (now with more bots) nobody really fucking cares.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

Testing the waters with a calculated risk. If it doesn't work, a smalltime Amazon reseller won't even be a blip on the radar and they can try again in a few years. But if the court allows it and established precedent it's a different story.

Remember it was Bethesda that was all in on the paid mods on Steam. That didn't work. Now look at the Fallout 76 "Creator Club" or whatever they are calling it.

Re:Are their lawyers just bored or something?

[alvinrod]

What you're describing (losing interests you don't protect) only works with copyrights. Bethesda doesn't have any legal standing regarding what can be done with their products after they've been sold. If someone wants to sell them to someone else, that's none of Bethesda's business. If someone is misrepresenting products to consumers, the FTC would be the appropriate party to contact and handle the matter.

Re:Are their lawyers just bored or something?

[quonset]

If someone wants to sell them to someone else, that's none of Bethesda's business.

In this one particular case, it is Bethesda's business. The seller is claiming the game is new. In the broadest sense it is new in that it hasn't been played.

However, it is not new in that this is not the first sale of the game. This is the second sale. If/when someone buys this game and has a problem, who are they going to go to? The seller or Bethesda? Most likely they will contact Bethesda asking for help/support but they are not the original owner.

As Bethesda said, had the game been marked pre-owned, no problem. That wording clearly identifies the state of the product. Yes, it is nit-picking, but in this case it is warranted.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

By that measure no game ever sold in a store is NEW.

They were first bought by the store from the software publisher.

They will then sell that to you. Second sale.

Not new!

Re:Are their lawyers just bored or something?

[HiThere]

It won't be even a small scale precedent (legally) unless it reached the appellate level, and there's little chance of that happening here.

I just note that Bethesda is another company I don't want to do business with, and move on. Of course, I didn't know who they were until I read the article, as the games I play are a couple of decades old. (I don't accept abusive EULAs.)

Re:Are their lawyers just bored or something?

[Anonymous Coward]

Why is it a problem if the second owner goes to Bethesda for support? Statutory warranties are transferable, Bethesda have to support the game anyway, and the buyer has a valid license. Legally Bethesda doesn't have a choice in the matter.

Re:Are their lawyers just bored or something?

[Xenx]

Not everything would be about warranties. What happens if the new buyer opens the box and the disc is missing? As it was listed as new, the buyer would turn to the company to resolve it. But, the seller could have nicked the disc and sealed it back up.

Re:Are their lawyers just bored or something?

[cascadingstylesheet]

However, it is not new in that this is not the first sale of the game. This is the second sale. If/when someone buys this game and has a problem, who are they going to go to? The seller or Bethesda? Most likely they will contact Bethesda asking for help/support but they are not the original owner.

Why should that matter? If it's never been opened/activated/whatever, then so what? Bethesda sold one game and they have to support one game.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

"Like New" implies that it has been used, which is wrong, and unfair to the seller to demand.

Bethesda is psychopaths.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

Most likely they will contact Bethesda asking for help/support but they are not the original owner.

Which as far as Bethesda knows it is the original buyer.

Keep in mind it's buyer not "owner", because we don't "own" our copies of the game, we "license" them, except when it's more legally advantageous to the publisher for us to "own" them in court, then we "own" them but only during that specific court case and only under those specific terms....

If it really is a new copy of the game, then it's still sealed, never touched from the way the publisher's distributor left it. If it's a PC title, it's one-time-use Steam redemption code hasn't been used yet. So from Bethesda's perspective it's still a pristine copy. The only thing going on here, and hence Bethesda's complaint, is Bethesda didn't make money on the second transaction, and they want their cut.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

More than this. The publisher sells to a distributor and then the distributor sells to individual stores. The publisher often isn't the one pressing the discs themselves, so they're probably buying the discs from the manufacturer.
So, by the time it's sold at retail, it's likely been sold from the manufacturer to the publisher, from the publisher to the distributor, from the distributor to the store and then finally sold to a customer. That's 4 sales just to get to retail. Then, if it doesn't get sold at retail, another retailer will likely buy it as a bulk lot and then onsell it again.

Re: Are their lawyers just bored or something?

[Anonymous Coward]

until the softwate on the actual game disc is installed (pc) or used, and somehow registered with Bethesda, Bethesda does not know about it. The software container does not have a unique tag thats scanned at the poin of sale and later sent to Bethesda.
All the "warranty" bullshit is going to apply only to the first registered user of the game, not the initial purchaser.
Bethesda is really trying to play semantics. What is sad is seeing presumably smart, aware people here falling for it and actually defending it.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

You know that that is a cop out right?

If I opened a mom and dad b&m store and purchased 1000 copies of a game from walmart to sell at the store, that is all perfectly legal and the issue of whether the publisher has to provide warranty or not still exists. However the publisher can't stop me from selling it like they are trying to do to this seller on amazon.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

The seller is claiming the game is new. In the broadest sense it is new in that it hasn't been played.

With the same reasoning you could say that Bethesda tries to redefine "new" as "has never left the retail chain" - even when it has been on a shelf for a couple of years.

Just imagine: You pay for a product, and from that moment on you are forbidden to mention (to your family/friends) that you've got something new. [whut?]

And its funny, products that have been sold and than returned unopened (for whatever reason) always get sold as "new" again ...

Besides, such a product goes thru many hands/companies (all charging for the privilege) before it reaches the customer. How come it stays "new" until it reaches that customer, and not looses that aspect somewhere along the (even quite literal) road ?

And than the "we can't verify that the game hasn't been opened and repackaged" complaint. If they mean that they really can't, what difference does it make ?

As for all other meanings, when the buyer takes his product home they loose that anyway, so there is no difference there either.

As a last thing:

because it isn't being offered with a warranty

Funny, that "warranty" somehow seems to cling onto the product thru its whole transport and resale to smaller companies, but as soon as it goes into the hands of the consumer it somehow looses that grip, and escapes from the still cellophaned, never used product ?

Ands if they are talking about the (by law mandated) sellers waranty, thats something between the buyer and the seller, which Bethesda has no voice in.

Re:Are their lawyers just bored or something?

[Bert64]

You turn to the seller to resolve it as the seller didn't provide you the goods you paid for... This is a breach of contract.
You don't and never did have a relationship with the original manufacturer of the product.

Re:Are their lawyers just bored or something?

[popoutman]

(I don't accept abusive EULAs.)

Luckily I live in a regime where EULAs are completely non-enforceable as they are not contracts.. They are nothing more than a wishlist by the distributor, and are meaningless when it comes down to enforceability. Nothing the creator/seller writes in a click-through can take away from my rights as a purchaser - they can only add..

Re:Are their lawyers just bored or something?

[Dragonslicer]

What you're describing (losing interests you don't protect) only works with copyrights.

Trademarks, not copyrights.

Re:Are their lawyers just bored or something?

[omnichad]

Maybe not everything would, but that was their specific legal claim in the C&D.

Re:Are their lawyers just bored or something?

[SuiteSisterMary]

Sure, but in this case, the condition is 'used - unopened,' not 'new.'

If I go to a local car dealership, buy a car, turn around, and sell it to a third party, having never even unlocked the door, am I selling the a 'new' car? Nope. I'm selling them a previously owned car. Perhaps one in great condition, but still not a new car.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

> Sure, but in this case, the condition is 'used - unopened,' not 'new.'

As much as people are nitpicking the definition of "new," I'd like to nitpick the definition of "used."

IMHO, an item isn't "used" unless it was actually, well, used, as distinct from "previously owned." It's difficult to use an item that has never been unwrapped.

Re:Are their lawyers just bored or something?

[Bert64]

Well that car has previously been owned by the dealership, so by your definition it's only "new" if you buy it direct from the manufacturer.

It's not been used unless one of those owners has driven it.

Re:Are their lawyers just bored or something?

[tehcyder]

More than this. The publisher sells to a distributor and then the distributor sells to individual stores. The publisher often isn't the one pressing the discs themselves, so they're probably buying the discs from the manufacturer. So, by the time it's sold at retail, it's likely been sold from the manufacturer to the publisher, from the publisher to the distributor, from the distributor to the store and then finally sold to a customer. That's 4 sales just to get to retail. Then, if it doesn't get sold at retail, another retailer will likely buy it as a bulk lot and then onsell it again.

This reminds me of the scene in 'Through A Scanner Darkly' where they can't understand why a bicycle is described as having 18 gears and not 9.

Re:Are their lawyers just bored or something?

[SuiteSisterMary]

It's difficult to use an item that has never been unwrapped.

You're right that 'used' might not be the correct word, but just because it's 'unopened' doesn't necessarily mean that it hasn't been bent, folded, spindled, mutilated, submerged, baked, fried, whatever. And that's Bethesda's point.

Re:Are their lawyers just bored or something?

[Anonymous Coward]

In what fucked up world does something never used, still in the original sealed packaging stop being new because it's had several owners?

hint, most stuff in stores has had several owners before you get your hands on it (the manufacturer, the wholesaler, and the retailer)

Re:Are their lawyers just bored or something?

[Anonymous Coward]

You really think they give a rat's ass about the condition their games are resold in?

This is not about fraud, false advertising, fair use or first sale doctrine. It's about control of the sales channels.

Bottom line: Bethesda does not want people to buy the games from anyone but Bethesda, and they'll do whatever they legally can to prevent it.

Oh, you can't verify?

[Anonymous Coward]

Who asked you, Bethesda? The seller doesn't need your permission, asshats.

Was the product opened?

[Anonymous Coward]

Was the product opened? No.

Then it is new. It would be returned and restocked as new - it can be resold as new.

Hell, most mall stores actively remove product from boxes, and are still able to sell the game as new.

Jim Sterling actually has the perfect response:

https://www.youtube.com/watch?...

Bethesda deserves all the backlash on this one, for going with this particular set of 'protection' attorneys.

Re:Was the product opened?

[Anonymous Coward]

Bethesda's own double speak makes them ass wipes.
If a product has never been used, package never opened the it is "New", however,
what exactly is the difference if product is sold by 3rd party or an authorized reseller?
Both at some point purchaced the product.
So then, wouldn't Bethesda's authorized reseller also selling "a not new" item?
Are they trying to say "New" mean the first purchaser, except in a special magic way doesn't apply to an authorized reseller?
Total bull shit!

"Sealed and unopened" and yet "unwrapped"

[jaa101]

The game in question was sealed and unopened, technically not "used," [...] Bethesda also took issue with the seller's use of the word "new" in selling the unwrapped game

How can it be both "sealed and unopened" and yet also "unwrapped"? Is there an argument about it or is this some distinction that's lost on non-gamers?

Re:"Sealed and unopened" and yet "unwrapped"

[Anonymous Coward]

Because it hasn't yet been observed, it is both sealed and unopened and unwrapped.

Re:"Sealed and unopened" and yet "unwrapped"

[phantomfive]

The plastic wrap was removed, but the box was unopened?

Re:"Sealed and unopened" and yet "unwrapped"

[Anonymous Coward]

How can it be both "sealed and unopened" and yet also "unwrapped"? Is there an argument about it or is this some distinction that's lost on non-gamers?

It doesn't take a gamer to know that lawyers can't tell the truth if their life depended upon it.

It's both "sealed and unopened" and yet also "unwrapped" as claimed by a lying lawyer, in the exact same way as you are both "alive" yet also "dead" as claimed by a lying lawyer.

You see, you typed your post up showing you are "alive".
Separately, a lying lawyer has claimed you are dead, because lying is what they do.
Thus you are both alive and dead at the same time.

Being sealed in shrink wrap that has never been opened is what normal human beings call "sealed and unopened"

You would need to dedicate your life to studying law in order to comprehend how completely sealed in the shrink wrap and never opened could be redefined under the word "unwrapped"

Re: "Sealed and unopened" and yet "unwrapped"

[Anonymous Coward]

did the cat jump out, or fall out?

Re:"Sealed and unopened" and yet "unwrapped"

[Anonymous Coward]

Oftentimes, games are sold with a layer of plastic wrap and also a sticker-like object that prevents opening unless you tear it off or cut through it.

It's like my phone; the entire box came in a clam pack, but the box itself also had two 'VOID IF REMOVED' stickers sealing it. (Followed by three more layers of packaging... it was kind of overkill.)

Re:"Sealed and unopened" and yet "unwrapped"

[Anonymous Coward]

Because the box likely has those round plastic stickers/seals at both ends that you either have to cut through or tear the lid off to get past. Or use a heat gun if you're the shifty type. Being both "sealed" and "unwrapped" simply means the cellophane wrapper is no longer in place but the security seals are.

Re:"Sealed and unopened" and yet "unwrapped"

[Polymon]

Consider this scenario:
I ask for a Bethesda game for my birthday. Two people buy me the game. I don't know where they purchased the games.
How do I sell the one that I don't open? Ebay? Amazon?
Is the game that I sell covered by a warranty? It better be!

Re:"Sealed and unopened" and yet "unwrapped"

[Anonymous Coward]

Is the game that I sell covered by a warranty? It better be!

The warranty might not transfer. Just like with cars. If I buy it second hand, even if it was "new" and never driven, there can be parts of the warranty that don't transfer.

New Works for Me

[nowwith25percentmore]

"New" describes the state of the product, irrespective who the seller is.

Re:New Works for Me

[Anonymous Coward]

That's not necessarily true, and may differ between regions. When a consumer buys a new product from a reseller, it may come with additional benefits or rights which may not be conferred when buying 'new' second-hand from an individual.

Re:New Works for Me

[Anonymous Coward]

A product is new if it hasn't been used. Just because it doesn't come with the benefits of warranty or other benefits does not magically make it not new. It just means it's not being sold by an authorized reseller and the company that produces (presumably) the product is a company one should be avoiding on ethical grounds.

Re:New Works for Me

[guruevi]

That's not how the first sale doctrine works though. You can resell what you purchased and any rights conferred on you (any remaining warranty etc) come along with that purchase.

Car dealers like to pull that trick. Selling you a 5 year drivetrain warranty when your CPO has 7-8 years remaining on the manufacturer's warranty.

New or used though, a company cannot impose its will on dealers it does not have a direct contract with. It is legal to sell product and resell it in any condition you wish, with or without markup. I don't see this going too far.

It makes sense, it's like scalping

[Tyr07]

I'm against preventing second hand sales, but I think I have to agree with them.

Here is the problem, Game company sells a game on discount, is like, here, you wanted to play it? Here's a good deal for you!

Gets more players, more fans, exposes their content to more people, this is a good thing. Problem? While it's on sale, a bunch of scalpers (Yes it's the same breed) pick up the game cheaper, and then resell it at a higher price, making a profit. Often close to or at the original cost. So they're literally taking money off the sale of a brand new game that the company was selling. Typically I feel the businesses are all doing the shady shit, in this case, it sounds like scalpers or "unauthorized resellers"

Re:It makes sense, it's like scalping

[sjames]

Scalping is a bit different from someone making a one off sale of a single copy that they bought and never got to use for some reason.

Re:It makes sense, it's like scalping

[Tyr07]

Right but the same challenges are faced.

A concert sells tickets. You buy a ticket, wait for it to sell out, then sell it for a higher price. Or you buy a ticket, something comes up, you can't go so you sell your ticket, the ticket is hot so you can make some extra money, so you sell it for more than you paid.

Can you tell the difference between a circumstantial seller or someone scalping tickets and doing it as a business? Not so easily, especially if the volume isn't there.

People are most definitely buying games on sale and reselling them unopened at higher prices, it happens a lot. I have no idea if that is what happened in this case, but neither does the game company, so the rule has to be applicable across the board, or the scalpers are gonna like be "Oh me to, just circumstances, totes not reselling for profit."

Re:It makes sense, it's like scalping

[omnichad]

The first sale doctrine explicitly makes this legal in the US. And furthermore, in Bethesda's statement:

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

They can't unilaterally not allow something. The seller doesn't have a reseller agreement that they would be breaking. They have no relationship to the company whatsoever, so the company has absolutely zero standing to sue.

Re:It makes sense, it's like scalping

[Anonymous Coward]

A concert sells tickets. You buy a ticket, wait for it to sell out, then sell it for a higher price. Or you buy a ticket, something comes up, you can't go so you sell your ticket, the ticket is hot so you can make some extra money, so you sell it for more than you paid.

Because concerts, like plane seats, have rival space and the venue maximizes profit by selling all tickets, even if they sell many at a steep discount. The closest analogy would be a limited-edition run of a game.

Can you tell the difference between a circumstantial seller or someone scalping tickets and doing it as a business? Not so easily, especially if the volume isn't there.

The problem is that scalping is a manifestation of a problem inherent in the situation. In the space of games, especially with high volume games like what Bethesda provides, the volume should inherently cut any potential ability to scalp because no one can create rivalry and directly make a profit from it. However...

People are most definitely buying games on sale and reselling them unopened at higher prices, it happens a lot. I have no idea if that is what happened in this case, but neither does the game company, so the rule has to be applicable across the board, or the scalpers are gonna like be "Oh me to, just circumstances, totes not reselling for profit."

Now you're actually describing is more akin to HFT. You buy low and sell high. That is literally the cornerstone of any market. Most places even go as far as to limit purchases per customer precisely to more fairly allow as many people as interested to take advantage of the sale. But the point is, so long as the reseller sells the game to people later at a price lower than the standard price, everyone wins. It's just that without the middle-man--the reseller--the user would have received a greater value.

The irony, of course, is that by definition "authorized resellers" are no different than your example middle-man who buys low and sells high, except they're being sanctioned by the original publisher with a stock and generally bound to a set price (include set sale prices). If your argument were to be really carried out to its extreme, then Bethesda should be calling for the end of all these below-cost "authorized resellers" not merely the ones they didn't personally sanction. That they choose to make a distinction because one group has signed contracts with them and does their bidding obviously spells out that this is not their actual concern.

Re:It makes sense, it's like scalping

[phantomfive]

I guess that's true if there are a limited number of games on sale. I think usually discount sales on games are limited by time, not by quantity. Not always, though.

Re:It makes sense, it's like scalping

[cascadingstylesheet]

I'm against preventing second hand sales, but I think I have to agree with them.

Here is the problem, Game company sells a game on discount, is like, here, you wanted to play it? Here's a good deal for you!

Gets more players, more fans, exposes their content to more people, this is a good thing. Problem? While it's on sale, a bunch of scalpers (Yes it's the same breed) pick up the game cheaper, and then resell it at a higher price, making a profit. Often close to or at the original cost. So they're literally taking money off the sale of a brand new game that the company was selling. Typically I feel the businesses are all doing the shady shit, in this case, it sounds like scalpers or "unauthorized resellers"

I don't get the hate for "scalpers".

Some super sale gets announced, and only the savviest and quickest get to take advantage of it. And that's OK with you, but only if those savvy quick people consume it themselves? Why? What's so great about them?

Anyway, it's called arbitrage and is almost impossible to prevent, for any significant price differential.

Re:It makes sense, it's like scalping

[sjames]

The scalper has two fists full of tickets for multiple concerts and sells for substantially above retail because he and fellow scalpers created a shortage. The circumstantial seller has 4 or less tickets and may sell for a bit above retail mostly because he's offered above retail.

The video game reseller can't get above retail because you can still just buy a copy retail. But the 'scalper' will still have fists full of multiple titles while the circumstantial seller will have one each of a few titles at most.

Re:It makes sense, it's like scalping

[Anonymous Coward]

"Scalping", or, as it is called outside of the concert ticket industry, "Arbitrage" is completely legal in every country I know of.

Specific cities disallow it, and even then, often in just specific areas of their cities.

Smoking is also legal in every country I know of. Specific cities, or, occasionally, states/provinces restrict it. One would easily say that smoking is far more illegal than scalping in that regard, yet nobody says smoking, as an activity, is illegal.

Re:It makes sense, it's like scalping

[Anonymous Coward]

You can justify it in your head any way you like, but most of society won't comply. To most people, scalpers are scumbags and they want nothing to do with them.

You don't make friends with scalping.

Re:It makes sense, it's like scalping

[Anonymous Coward]

Except this is the USA and you can literally sue anyone for anything. If you have enough money, you can keep suing them until they go bankrupt.

Re:It makes sense, it's like scalping

[suutar]

As I understand it much of the hate for scalpers goes like this:

Band puts on show
band wants show to be accessible to their biggest fans, who are frequently the ones with spare time, which frequently means the ones without as much money, i.e. teenagers
scalpers grab all the tickets, teenager fans can't afford them
also, seats scalpers can't sell become empty seats (not unprofitable seats, they did get sold, but the band'll be less chuffed than a full house would provide)
so the band is less than happy two ways, which makes fans of the band unhappy. And almost everyone's a fan of some band.

One solution is to keep putting on shows as long as the tickets sell out, thereby increasing supply (theoretically) to the point that the scalper can't make enough profit to bother. But that's not always an option, due to pre-scheduling of both the band and the venue.

There's also some "why should that guy get to gouge other people for tickets because his computer was faster at buying them out? what's so great about him?" resentment.

Re:It makes sense, it's like scalping

[Anonymous Coward]

that's when guns become useful. i'm surprised I never see any killings in the news over corporate abuses like this.

Re: It makes sense, it's like scalping

[Anonymous Coward]

some people scour Goodwill and other thrift stores for books. They then can "flip" them on EBay for more $, or if they live in Portland OR, take them into the used book buyers at Powell's Books, to hopefully get a slight amount more than what they bought it for.
(Goodwill has caught on, and in some places picks out really good items donated to them to sell at boutique outlets in tonier areas for more than they'd normally be on the shelves for...)

Re:It makes sense, it's like scalping

[The Evil Atheist]

And who should one kill with said gun? And is it worth losing your own life over some stupid game?

Re:It makes sense, it's like scalping

[Anonymous Coward]

That would be over half my collection. I have intentions of playing everything I buy but real life actually puts limits on my game time. However since a lot of the games I play actually become a viable target for scalping due to their niche nature, I have little choice but to buy them at launch (or within a month or three) if I want them physically without paying a 100-1000% markup.

But I don't always get the chance to play them all.

The only way someone can seriously try to argue the scalping argument here is if this Bethesda game can't possibly be found either used or at regular price. Is that the case? I highly doubt it with anything that they've made which usually ends up flooding bargain bins and used sales shelves in large supply.

The arguments they're making about amazon's policies is also laughable. They're deliberately looking for a special case scenario that might have a chance at court so that if they win they can then use that as proof that they can do this on a broader scale later.

Kinda like how a patent troll will target small companies over a bad patent instead of going to a large billion dollar company that has an army of lawyers on hand. Once they have a few court wins or cases of small companies rolling over due to financial reasons, they can then use that as ammo against the larger prey they actually expect money out of.

Re: It makes sense, it's like scalping

[gTsiros]

why not make tickets carry a name?

Re:It makes sense, it's like scalping

[Calydor]

What kind of idiot scalper gets in line, buys a ticket, goes back to the end of the line, buys another ticket, repeat ad infinitum?

Re:It makes sense, it's like scalping

[Anonymous Coward]

The same idiot that starts talking before he knows what hes talking about - you.

Re:It makes sense, it's like scalping

[sjames]

Because scalpers first create an artificial shortage and then gouge. It's called rent seeking.

Your attempted justification rings no more true than the shop lifter that claims the stores overcharge anyway so he's just balancing the books.

Re: It makes sense, it's like scalping

[Anonymous Coward]

Because you have to check it at the centrance, which takes time. It may make sense in small event, but in bigger ones, every extra second adds up.

Also, event organizers just don't care since scalpers help them sell all their tickets and get the money.

Re:It makes sense, it's like scalping

[Anonymous Coward]

First sale doctrine, sure. You can resell in person or on Craigslist. But Amazon is a company, not the government. Amazon is in control of what they do or don't list and can ban anyone from their platforms for any reason other than discrimination. The government won't prevent you from selling something, but Amazon can ensure the sale doesn't happen through them.

This is a major problem with all the super rich monopolies cropping up. They cozy up with other businesses and suddenly everyone else is hung out to dry. You follow their rules or suddenly you find yourself not being able to play with anyone. An example is returns. Info on returns is sent to a data mining company which checks for fraud. If you're mistakenly (or correctly) flagged, suddenly all your returns will be denied from all stores which use the service. If you make money selling online, a couple fake copyright claims on 2-3 sites and suddenly you're about to be homeless since you've been banned for life from your occupation.

Re:It makes sense, it's like scalping

[edtice1559]

If this were true, the scalpers would have no customers and go out of business. Many items are offered in such a way that you get a better price if and only if you are willing to wait in line or otherwise waste time. Sometimes the *only* way to get certain things (like tickets) is to stand in line for days. Anybody whose time is valuable is going to find somebody whose time is less valuable and just pay them to do this. Scalpers have simply turned this into a repeatable business plan.

Re:It makes sense, it's like scalping

[edtice1559]

No idea why this is modded to -1. Although the OP pointed out why some bands may not want to do this.

Re:It makes sense, it's like scalping

[Anonymous Coward]

You are right about the First Sale Doctrine as it applies to copyright but that isn't Bethesda's argument.

(Please note that I disagree with Bethesda's position. I only want to clear up the confusion about that position so please don't give me grief.)

Bethesda is arguing that their *trademark* (not their copyright) has been infringed. Although the First Sale Doctrine is more closely linked to copyright it does also provide trademark protections to sellers of goods as long as the goods sold are materially the same as the original item.

Here, Bethesda is arguing that this item is materially different than if it were purchased from an authorized seller because it is lacking the 30-day return guarantee that it would come with. (Again I am not agreeing with their argument, only trying to clarify what they have said.)

Companies have wide latitude when they are policing their trademarks and Bethesda is essentially arguing that their mark is damaged when people buy this game because it is lacking this warranty. This is why they could use the Courts to prevent a sale like this even though they are neither the seller or the buyer. As the trademark owner they have the ability to ask the Courts to prevent the good from being sold if it were infringing their trademark. (And once again I'll point out that I disagree with their argument.)

Re:It makes sense, it's like scalping

[Ichijo]

Because scalpers first create an artificial shortage and then gouge.

That's funny because Wikipedia says shortages are caused by laws against price gouging!

If you and Wikipedia are both correct, then scalpers cause or take advantage of laws against gouging to cause shortages. Then if shortages cause gouging ("scalpers first create an artificial shortage and then gouge"), one could say that laws against gouging cause gouging. Is your head spinning yet?

Re:It makes sense, it's like scalping

[Anonymous Coward]

simple solution, the game company doesn't offer discounts on the purchase of the physical game and instead offers a discount or free premium down-loadable content to the actual players of the game thus making scalping of the game worthless..

see what if the seller of the game was gifted the game by a relative but the seller doesnt like that kind of game or maybe already has a copy. now the seller could try and trade it in at pennies on the dollar or put it up for sale online and try to get more money from a game that they will never use.

No, this is a company lawyer being over zealous because they are making a name for themselves or trying to add more billable hours to cover that bad weekend in Vegas.

PS, scalpers will go away when wall street goes away (they are the same thing essentially) they add nothing to the product they are selling and are only into making a profit based on buying something at the right time and selling it at the right time.

Re:It makes sense, it's like scalping

[sjames]

No head spins here because I realize that the same action can have different results in different circumstances.

Keep reading and you'll see that artificial scarcity (what the scalper does) can also cause a shortage. Of course, a more nuanced understanding of gouging eliminates anti-gouging as a cause of shortage. For example, if, after a disaster it actually costs me substantially more trouble and I have to pay for a substantially more expensive mode of transportation, I haven't ACTUALLY price gouged if I charge substantially more for gasoline than I did before the storm and subsequent emptying of my storage tanks.

OTOH, if I have full tanks and I double the price immediately after the storm, I am price gouging.

If I buy out the other 2 stations in the area then charge 10 times as much for gas, I am gouging AND scalping.

Re:It makes sense, it's like scalping

[Ichijo]

Keep reading and you'll see that artificial scarcity (what the scalper does) can also cause a shortage.

The Wikipedia article on artificial scarcity says otherwise. Could you point me to the text you are using that claims scalpers cause artificial scarcity? Usually the original seller is blamed for encouraging scalping by setting prices so low like what Nintendo does.

Re:It makes sense, it's like scalping

[omnichad]

zero standing. You can sue. You just won't win. Anti-SLAPP lawsuit is your next move rather than waiting for bankruptcy.

Re:It makes sense, it's like scalping

[omnichad]

Nice story, but the C&D was sent from Bethesda directly to the 3rd-party seller and the seller complied without Amazon getting involved. No reason to bring Amazon or their policies into this case.

Re:It makes sense, it's like scalping

[omnichad]

That would still leave money on the table. People who miss the auction window and buy late would still have to buy from a scalper in that scenario. Just with less profit for the scalper.

Re:It makes sense, it's like scalping

[sjames]

See this section The first and fifth bullet points just about sum it up.

The Forbes article was talking about a pre-order artificially limited by the original seller, not scalping.

Perhaps you should READ the links you post to me first.

Re:It makes sense, it's like scalping

[Ichijo]

You don't have to read past the first sentence of the article to understand that it doesn't apply to ticket scalping:

Artificial scarcity describes the scarcity of items even though either the technology and production, or sharing capacity exists to create a theoretically limitless abundance, as well as the use of laws to create scarcity where otherwise there wouldn't be.

(Emphasis added.)

Because there are a limited number of tickets for any given event, scarcity exists even without scalping. Scalping cannot create a scarcity of tickets, artificial or otherwise, because the scarcity already existed.

Re:It makes sense, it's like scalping

[sjames]

But you DO if you want better than a grade school understanding, which will show you that the summary is being VERY general and that there exists a more specific case that scalpers very much fit.

Re:It makes sense, it's like scalping

[Tyr07]

You're so confused and aren't making sense.

Scalpers buy one or more tickets, and then sells them at a higher price they paid for as a commercial venture.

This bit about standing in lines or whatever is nonsense and sounds like you're in your own world. Like did you forget about online sales and just started making stuff up for some invisible point? No one said anything about standing in line, and then repeating for the same ticket one at a time. Silly.

Re:It makes sense, it's like scalping

[Tyr07]

Well that's what I said it's harder to tell unless you can link volume.

The problem is scalpers etc, resell under multiple names as to avoid being caught. Just because you don't do the volume, doesn't mean you're not behaving the same way a scalper does.

The basis of scalping is as a business venture, buying items for consumers at a lower price than you sell them for, as a new unused product. Concert tickets can't be used, it's for a single concert. The video game in question was also being sold as new, unused, treating it the same as if you bought it straight from the developers.

I mean they got a good point. If it wasn't marketed as new, then it would have been fine. Concert tickets can't be sold as second hand, so people have a big issue with scalpers as they're ripping off the concert organizers. Do you want them to raise prices by 50%? No, not everyone could afford that. Is it fair that scalpers take the positions available, and jack up the price creating a second tier of clients? People would be outraged if a company said some have to pay more just because we feel you can afford it.

It's the same thing here. They buy it on sale which is a boon for people who wouldn't pay as much for the game, or can't afford to, so they use the businesses reasonable prices against them, by buying it on sale and selling it closer to retail, taking money out of the game company. That person could have paid the developers that money instead, and they would have made a better profit for the game they made.

Re: It makes sense, it's like scalping

[Tyr07]

Part of it is the other reply about clearance time.

The other issue is they don't want to limit regular people from giving a ticket to a friend who can attend, as an invite or if they can't go themselves for reasons, or the regular folk who can't attend and might want to sell the ticket.

It's basically bad actors that could make things harder for regular people by intentionally taking up a lot of the tickets to jack up the prices which is shitty.

Re:It makes sense, it's like scalping

[sjames]

One way to tell is have two people try to buy the same game from a seller. If both get a copy, it's scalping. If one gets a copy and the other gets "sorry, I sold it already", then it's likely a circumstantial reseller.

As for the condition offered, what, other than "new" would you call a game still in it's original shrink wrap? It certainly wasn't used.

Re:It makes sense, it's like scalping

[Tyr07]

Right because scalpers wouldn't intentionally limit their sales per username to avoid being busted.

Every thing you can come up with to prove they're not scalping that relies on honest answers from the seller, are things scalpers thing of too, and respond appropriately.

You're right, the game was in new condition, but new unused products makes an unauthorized reseller, which it seems, there are laws against. I imagine any middleman type people reading this have rage bubbling.

Re:It makes sense, it's like scalping

[sjames]

Given the overhead of setting up a new identity for every sale, it would make the reselling unprofitable.

As for legality, what law are you referring to?

Re:It makes sense, it's like scalping

[Tyr07]

Well if there was no legal recourse then there would be no article, and no legal action by the game company.

Use common sense, I shouldn't need to explain every little bit of this, if you think about it yourself, you'd setup multiple identities but not per sale, you'd sell different items under different identities. They would likely be reused.

Also it takes effort for you as a person to create new identities constantly. There is a reason they try to fight bots all the time, you can't honestly believe there isn't people in some well known countries with scripts that just create new accounts automatically and sell items? Scripting is real my friend, why do you think when you order from lesser known sellers over seas you sometimes end up with junk and they quickly disappear? They're not really gone they've just taken a new name so they don't get caught by their reputation as a seller.

Re:It makes sense, it's like scalping

[sjames]

It's not at all uncommon for corporations to rattle the saber even when they don't have a leg to stand on. Mostly they're counting on the other party to not have enough time or money to go to court even when they're clearly in the right.

As for people in other countries doing it by scripting, they don't give a crap about a suit in a U.S. court. U.S. civil courts have no jurisdiction over them.

Re:It makes sense, it's like scalping

[Tyr07]

Right but you're arguing a..you know what, you win, you super got it right.

I'm not going to try and have a debate on this topic when someone keeps pulling different parts of a discussion and tries to apply it's point to something unrelated.

I pointed out that scalpers use multiple identities, you said it would take to much effort, I said they would use scripts and used other well known countries as an example, you said people in other countries don't care due to jurisdiction. Common sense would imply it's not limited to out of country, but the example was somewhere where it's rampant. You're trying to isolate it to the literal and it's fucking stupid.

Authorized Resellers and Ligma

[Anonymous Coward]

Did Bethesda take money for that copy of The Evil Within 2? Of course they did, they don't give them out for free, a distributor bought it from them and then turned around and sold it to someone else. That copy of The Evil Within 2 no longer belongs to Bethesda. Or the distributor. Or the retailer. Right now it belongs to Ryan Hupp. If anyone else wanted to control what happened to that particular copy of the game, they should have fucking kept it.

Fuck Bethesda, No case, no legs to stand on.

[Anonymous Coward]

Fuck Bethesda, they got no case, no legs to stand on.

New = Unused
New = Still Factory Sealed
New = Whatever the hell I choose to make it mean. Just like AT&T, Verizon, Sprint, T-Mobile with their "Unlimited" cell plans, "Unlimited" internet service, and "Biggest" coverage areas. Not a single one of their claims meet what the "term" means, but they get away with it. So fuck you Bethesda.
Fuck you Bethesda. Fuck you Bethesda.
Fuck you Bethesda. Fuck you Bethesda.
Fuck you Bethesda. Fuck you Bethesda.
Fuck you Bethesda. Fuck you Bethesda.
Fuck you Bethesda! Fuck you Bethesda!
Fuck you BethesdaA. Fuck you Bethesda0.
Fuck you BethesdaB. Fuck you Bethesda1.
Fuck you BethesdaC. Fuck you Bethesda2
Fuck you BethesdaD. Fuck you Bethesda3.
Fuck you BethesdaE. Fuck you Bethesda4.
Fuck you BethesdaF. Fuck you Bethesda5.
Fuck you BethesdaG. Fuck you Bethesda6.
Fuck you BethesdaH. Fuck you Bethesda7.
Fuck you BethesdaI. Fuck you Bethesda8.
Fuck you BethesdaJ. Fuck you Bethesda9. .....
50 billion repeats later.
In case you missed it.
Fuck you Bethesda. And Fuck you slashdot for infringing on my speech. If I want to repeat myself ad-nauseum, I will repeat myself ad-nauseum. Fuck you Bethesda.

Re:Fuck Bethesda, No case, no legs to stand on.

[Anonymous Coward]

Seriously dude, so much anger over a random seller not being able to sell a game on Amazon. You should consider yourself lucky if this is the biggest problem you have today.

Reason # 28,576 why you should pirate everything.

[Anonymous Coward]

Being an actual customer sure is a shit deal.

Prove standing

[Anonymous Coward]

Bethesda has no legal standing here. They should be countersued for tortious interference.

Misleading

[chesh1re]

The title line of this post is designed to hook you in with outrage, only to tell you the opposite at the end lol

Re:Misleading

[Anonymous Coward]

Welcome to the modern world, where you're the either the product or a pawn in games of manipulation.

"The only winning move is not to play."

Re:Misleading

[Anonymous Coward]

The title line of this post is designed to hook you in with outrage, ...

I'm curious why you're not outraged with: "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." Well, we also don't know if non-authorized resellers jacked off on the games. Or took a huge dump on them. Is Bethesda going to also require "may have been shit on"? Where does Bethesda get off? Oh, right, Bethesda gets off on selling stuff through authorized resellers. Sounds like we should demand all the packages from authorized resellers have in big bold letters: "Contains Bethesda Jizz" with a nice graphic of Bethesda jizzing all over the cover.

I mean, if they're going to claim some hypothetical as a basis for possible fraud they're protecting us from, why shouldn't we demand the same sort of clear labeling of just how they feel so there's no sort of deception of exactly where Bethesda stands? I mean it's clearly absurd to have such a thing on the cover, but that's clearly where Bethesda is coming from.

GameStop

[Anonymous Coward]

They regularly open games and sell them as new.

Wtf?

[reanjr]

Bethesda's argument doesn't make sense. If I am a shopkeeper I can buy things from one market and sell them at my store. I don't have to offer any sort of warranty to do this.

Why would a video game be any different?

Re:Wtf?

[Anonymous Coward]

Since when did Bethesda offer any sort of warranty on their brand new games anyway?

Re:Wtf?

[Anonymous Coward]

This differs between regions. In Australia, for example, that DOES obligate you to warrant the item. Whether you take the hit yourself or pass it up the chain to the wholesaler, manufacturer, whatever, that's your business. But your deal with the customer is that YOU provide the warranty to them. Not only that, but consumers in AU can avail themselves of the warranty outside of your stated warranty period, if your warranty period isn't towards the reasonably expected life of the product.

Re:Wtf?

[Anonymous Coward]

Also EULA always says this software is sold as is withouth any warranty. So what warranty are we talking about.

Re:Wtf?

[Anonymous Coward]

It's not merely because the item in question lacks this warranty but because a "new game sold through an authorized reseller" WOULD have the warranty. It is the difference between this sale of the game and a similar sale of the game at Walmart that matters (according to Bethesda).

Their argument is that the seller here is trying to sell a game as "new" but that it lacks the warranty that comes with "new" games (from authorized resellers) and that this difference is harming their trademark.

I think this is a terrible argument and would hope that the Courts would agree but of course that takes time and money and so a case like this is unlikely to reach trial. It's much easier to just sell the item but clearly state, for example, that it is "sold without the 30 day warranty you would get if you buy it at Walmart".

(It is common for manufacturers to abuse the trademark system like this because they want to control who sells their goods - often because it helps them control the price. Fortunately the courts - including SCOTUS - have clearly held that third-party resellers are completely legal as long as the goods in question don't differ materially from its original sale to those third-parties.)

How eBay handles this

[Anonymous Coward]

Incidentally, the 'Bay has a specific category, "New - other" to deal with just this kind of situation, i.e. where a warranty might be missing, the itemmight be sold in bulk packaging, etc.

Obligatory

[Anonymous Coward]

Fuck Bethesda. And fuck Zuck! And Elon Musk.

Re:Reason # 28,576 why you should pirate everythin

[Anonymous Coward]

I always run with reason #1: I like free shit!

First day of court proceedings...

[reiterate]

... Bailiff annunces the judge. Man with a thick Scandinavian accent strides in wagonwheels.mp3 Damn it Todd Howard, you've done it again

I assume Besthesda is going to ask Gamestop

[Anonymous Coward]

for a list of all the customers in the past that have bought their games as "new" but were already opened by Gamestop employees? Or more likely, they are going to use that list to invalidate all of their warrantees of the games that were new but opened and stiff the gamers.

Yep, Bethesda cares so much about customers...

[macraig]

... that they perpetrated a years-long effort to create Bethesda.net and launch a new version of Skyrim to utilize it, for no other reason than an attempt to destroy the free and open source modding ecosystem for the game and and replace it with one they control so they can monetize the hell out of it... to the detriment of their customers.

misunderstanding?

[Anonymous Coward]

This sounds like a total misunderstanding. Certain shady retailers take used games, shrink wrap them, and sell them as new. It could be that Bethesda is using scary sounding legal words to prevent a legitimate issue, not trying to take down people selling their old games.

NIB

[Anonymous Coward]

If the game was still sealed in its original packaging, as TFA says, wouldn't that meet the established definition of "new in box"? (I'm sure I remember the "new in box" term used on an episode of The Simpsons and Googling it turns up a definition at eBay.)

If the seller was trying to pass himself off as an official reseller, that'd be one thing, but if it was evident that he was just some schlub holding a yard sale online that would be something else all together.

Still don't have the labels

[sjbe]

Note that every store worth a damn has a shrink-wrap setup in the back. Being 'in the wrap' means nothing.

Yes well that's why they don't have the equipment to replicate the labels that get attached to the shrink wrap. I've never seen a shrink wrap job done by a store where it wasn't screamingly obvious that it wasn't done by the factory. But just in case someone isn't clear that's why companies put fancy holographic labels on the outside that are hard to replicate.

Well it is in the law

[Anonymous Coward]

I mean it says so in the last part of 17 U.S. Code  109 clearly reads (f):
"(f) Nothing in this section will be applicable if Bethesda claims it prevents the resale to protect customers or any other bullshit reason it can come up with"

Unused in factory packaging = new

[sjbe]

You can argue either way as to whether it'd deceptive or not to call it "new"; personally I'm on the fence about that.

If it is in factory original packaging and is unopened and unspoiled then it is "new". This isn't a difficult question to anyone with a functioning brain. If the vendor of the product doesn't want to honor warranties through non-authorized distributors then that's their call but it doesn't change the fact that the product is new. I have a hard time fathoming why they would actually care. If they cannot verify the package hasn't been opened and isn't their factory packaging then they are clueless morons and their packaging sucks. I understand being worried about counterfeits but this isn't going to solve that problem for them.

However, I'm far from being convinced that it concerns anyone other than the buyer and the seller.

That's because it doesn't concern anyone else. As long as the product is a legitimate copy and represented accurately as unopened and unused it is none of the manufacturer's business.

Age doesn't matter

[sjbe]

A bottle of wine from 1900 which has never been opened and has not turned to vinegar is still not "new."

Sure it is. It absolutely is a new product for purposes of sale. The fact that it was made a long time ago doesn't change that fact. There is no bright line difference between a product made 1 minute ago and one made 1 century ago in this matter.

Try that in the EU...

[Anonymous Coward]

Try pulling that shit in the EU and learn the hard way how much it hurts when a percentage of your yearly revenue flies away as a fine.

No case

[Anonymous Coward]

Bethesda has no ground to stand on in this case. Only the seller is responsible for the condition they state an item is in. Amazon is not responsible and Bethesda is not responsible.

guess who's games i won't be buying

[Anonymous Coward]

Take a guess. When a company starts finding their own loop holes for laws then you know they don't result care to innovate anymore.

Did not agree to EULA

[ehaggis]

If it is in the shrink-wrap is the EULA enforceable? Wouldn't it still be preowned?

I used to be an Amazon seller like you...

[Anonymous Coward]

... but I took a lawsuit to the knee.

New is New

[pubwvj]

https://www.dictionary.com/bro...