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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."
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 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?
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.
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.