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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.
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.
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?
"New" describes the state of the product, irrespective who the seller is.
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.
Being an actual customer sure is a shit deal.
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.
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.
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?
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.
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*
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.
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.
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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.