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

Posted by BeauHD on from the all-about-the-technicalities dept.

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."

7 of 203 comments (clear)

  1. Shrink-wrap by Anonymous Coward · · Score: 4, Informative

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

  2. Yet another reason to avoid Bethesda by Ritz_Just_Ritz · · Score: 5, Informative

    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.

  3. Re:It makes sense, it's like scalping by omnichad · · Score: 5, Informative

    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.

  4. Wtf? by reanjr · · Score: 2, Informative

    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?

    1. Re:Wtf? by Anonymous Coward · · Score: 4, Informative

      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.

  5. Unused in factory packaging = new by sjbe · · Score: 3, Informative

    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.

  6. Age doesn't matter by sjbe · · Score: 3, Informative

    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.