Bethesda defines what "New" means when it comes to reselling their games
As reported by Polygon. This story contains a lot of the same arguments that have been made in this forum as to what can and cannot be sold as “New”. It’s an interesting read.
Bethesda blocks resale of used game
"Many gamers sell their their used, physical games, often to supplement spending funds to buy more games. It’s such a big part of the gaming business that almost half of retailer GameStop’s profits come from selling used games.
But it looks like one publisher, Bethesda Softworks, may be seeking to rein in sales of used games online. Bethesda recently sent out a notice to at least one seller on Amazon’s Marketplace who was trying to sell a sealed copy of The Evil Within 2, demanding that they remove their listing. That letter included a phone number for sellers of Bethesda’s games to call, suggesting that the company is sending out such notices to multiple sellers.
Philadelphia-based Ryan Hupp recently contacted Polygon to explain how he’d been forced by Bethesda to stop selling his copy of The Evil Within 2. He bought the game but never unwrapped it, he told us. He’d been expecting to purchase a PlayStation 4, but instead spent his money upgrading a gaming PC. Hupp said he often sells used goods through Amazon Marketplace, which works in much the same way as other online trading sites, such as eBay.
Bethesda’s legal firm Vorys sent Hupp a letter, which he forwarded to Polygon, warning that the game must be taken down and threatening legal action for non-compliance. In its letter, Vorys made the argument that Hupp’s sale was not “by an authorized reseller,” and was therefore “unlawful.” Bethesda also took issue with Hupp’s use of the word “new” in selling the unwrapped game, claiming that this constituted “false advertising.”
Hupp complied with the demand, but in a reply to Vorys, he pointed out that the resale of used copyrighted goods — such as books, video games, DVDs — is protected in U.S. law through the First Sale Doctrine. This allows consumers to sell a used game, so long as it’s not significantly altered from its original form.
Bethesda’s letter claims that Hupp’s sale is not protected by the First Sale Doctrine, because he is not selling the game in its original form, which would include a warranty. The letter says this lack of warranty renders the game “materially different from genuine products” that are sold through official channels. In theory, this argument could be used against anyone who sells a used game without specific permission from Bethesda. If taken to its logical conclusion, Bethesda’s legal move could spell the end of users selling used games — or even brand-new unopened games — via online sites like eBay and Amazon Marketplace.
“Unless you remove all Bethesda products, from your storefront, stop selling any and all Bethesda products immediately and identify all sources of Bethesda products you are selling, we intend to file a lawsuit against you,” the letter reads. It goes on to state that a lawsuit would seek “disgorgement of profits, compensatory damages, attorneys’ fees and investigative and other costs.”
It’s also not clear why Hupp’s specific listing was targeted. Amazon still list dozens of used and new copies of The Evil Within 2 from Marketplace sellers.
When contacted by Polygon, Bethesda declined to comment on this story. We also asked for clarification on how the company’s warranties work on used goods sold through official channels. GameStop, for example, offers a blanket 30-day warranty on used games that do not work, so long as the game has not been broken by the buyers. Bethesda did not reply.
We also contacted Vorys for comment multiple times, but did not receive a reply. Amazon’s publicity department also did not respond to a request for comment.
On its website, Vorys offers advice for companies seeking to eliminate the sale of used products via places like eBay in an article titled, “Three-Step Approach to Stopping Unauthorized Online Sales on eBay.” Here’s an excerpt:
Under what is known as the First Sale Doctrine, once a trademark owner (“the company”) sells a product, the buyer ordinarily can resell the product without infringing the owner’s mark. However, the First Sale Doctrine does not apply when a reseller sells a trademarked good that is materially different from the company’s genuine goods.
Case law has established a few important principles relating to material differences. This includes that: 1) the threshold of materiality is considered “low”; 2) only a single material difference is necessary to give rise to a trademark infringement claim; and 3) material differences do not have to be “physical” differences.
This appears to be the basis of Bethesda’s legal claim against Hupp. Bethesda is a notoriously litigious company. It’s not clear how many similar letters have been out to people selling used games online, but Vorys’ voicemail message for Bethesda’s used games cases tells callers to leave details based on “the letter you have received” such as storefront name. It also thanks recipients of the letter if they have already ceased sales of Bethesda’s software.
“I understand the legal arguments Bethesda are relying on, and accept that they have some legitimate interest in determining how their products are sold at retail,” said Hupp in an email to Polygon, “but threatening individual customers with lawsuits for selling games they own is a massive overreach.”
Seller_FhQDcyz1xOtWB
At this point there should be an “Unused” category to clear up this mess. New, Unused, Used
The layman is unaware why Amazon, and in this case, Bethesda, don’t consider his item “New”.
Seller_UXwgqHxRYG0zx
OK, they lost me.This will not be the end of selling used games.
How long is their warranty? Certainly if it’s expired there is no longer a claim of materially different. At best they could restrict the sale of used goods still under warranty, but even that seems dubious.
This is just their lawyers being copyright bullies.
Seller_Xpktjspu2oF5C
Why is it they always omit the key point that was the trigger for this issue, selling used as new and duping the buyer.
It is so rampant on this site they will be sending out letters for a long time.
Seller_BhFEzobIfM3iE
One issue is that games often come with bonus content such as character skins, extra levels, extended gameplay, etc. And those things expire due to limitations set by console manufacturers. And the expiration date is not noted on the outside of the package.
I bought a cheap copy of Watch Dogs for PS4 that was new and unopened. Upon opening it, every single bit of the extra content had expired. So that 60 extra minutes of PS4 exclusive gameplay? I can’t use it. If I’d paid full retail for it, I’d be PISSED.
Thankfully I knew I was getting a good deal and that I was getting it because the bonus content had expired 2 years ago.
Seller_EuUjw0jiYGGBg
First sale does not protect people commiting fraud. Using books as an example if I sell a book as new that is clearly not new that is fraud. If I sell a book as new that I bought at a library sale as new that is clearly fraud. If I sell a book I got at a garage sale as new that is clearly fraud. Part of a companies value is its reputation. The reputation is considered part of its brand. As such a company can restrict who gets to sell their items as new to those who have a formalized relationship with the company or their authorized resellers and outlets. A publisher of music, media, games, etc has the right to protect its brand/reputation by fileing suit against people who they believe damage that reputation. Just because you do not get a letter from a company and just because you do not get sued does not prove you are not commiting fraud it just proves they are either not aware of you, do not belive it is a good use of their financial resources or do not consider you threat. Amazon and Ebay are the primary enablers of this kind of fraud because they are the biggest market places therefore sellers on these platforms are the most often targeted. Both platforms and a number of others are starting to support these companies in enforcing restricting the new category to authorized resellers.
new
n(y)o͞o/Submit
adjective
1.
not existing before; made, introduced, or discovered recently or now for the first time.
Seller_JAxkgomv0zj34
First sale doctrine doesn’t apply due to no warranty, so that makes it not identical?? Freaking attorneys!!
Seller_XFj8akGqahG0f
Sorry but if an item does not have the factory seal then he should not sell it has new. sounds like a scum bag seller to me. As for the selling of games new and used I do not agree. As Gamestop and many other retailers that sell new and used games and offer a warranty. If a seller self warranties the items that equals Bethesda (which isn’t worth anything hardly at all) then that should be enough as the item does come with the same warranty. I can promise you I have sold thousands of Bethesda games and I will never stop selling them. Sites may stop me but I will always have a way to sell them. Problem is that true C & C letters come in the mail registered and anything over the net may be delivered but isn’t proof it was actually received.
Seller_OBdaXqVdfOPb7
Sounds like the people that went to law school have one opinion while the people that graduated Seller University have another …
I know which one I’d put my money on.
Seller_W8eSvWihXwrAN
Software is a little different when it comes to the 1st sale doctrine.
If the EULA states that the software product is licensed then you don’t own the copy. It still belongs to the copyright holder and you must get their permission to sell it, used or new.
It’s hard to decipher from the story exactly what Bethesda Softworks’ specific issue was with the sale. Did they object to the item being listed as “New”? Did they object to it being sold at all due to their claim of a “material difference”? Is it a licensed software product? A copy of the letter they sent out might help clarify things.
If they intend to shut down all sales of non-licensed (note, I state “non-licensed” NOT “unlicensed”) used copies of their products because they do not include the “warranty” and the courts side with them that could spell the end to the used sales business. All a company would have to do is issue a warranty with their product and no one could resell it. For instance, a person could no longer sell a used car with an expired warranty.
This is the type of case Amazon (and eBay) should be fighting in the courts.
Seller_1LFpLri92dCU3
I received the same letter from Vorys, but it was for selling a Kong product. I found it a little overkill. They sent a 5 page letter, overnighted, with all the threatening verbiage. I had only 1 Kong product listed, and it was from my B&M pet store. I responded, thanking them for “actively monitoring my storefront’s activity for non-compliance” and haven’t heard a word back.
