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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."
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."
So enjoy it while you can.
Note that every store worth a damn has a shrink-wrap setup in the back. Being 'in the wrap' means nothing. AC
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.
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.
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.
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.
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?
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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.
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.
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?
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!
"New" describes the state of the product, irrespective who the seller is.
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"
Being an actual customer sure is a shit deal.
The title line of this post is designed to hook you in with outrage, only to tell you the opposite at the end lol
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?
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.
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*
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.
... Bailiff annunces the judge. Man with a thick Scandinavian accent strides in wagonwheels.mp3 Damn it Todd Howard, you've done it again
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.
... 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.
Gcr has been shuttered since 2016.
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.
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.
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.
If it is in the shrink-wrap is the EULA enforceable? Wouldn't it still be preowned?
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