Bethesda threatens legal action against someone trying to sell a brand new game.

Discussion in 'Video Game Forum' started by jefferz, Aug 11, 2018.

  1. jefferz

    jefferz Gold Belt Platinum Member

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    TLDR:
    1. man lists The Evil Within 2 ps4 game on amazon marketplace as new sealed
    2. Bethesda sends a legal letter threatening action saying there's no way to verify the game is new and take it down.
    3. man claims protected by First Doctrine Act
    4. Bethesda says no




    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.”
    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 game without specific permission from Bethesda.
    “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.”
    https://www.polygon.com/2018/8/11/17661254/bethesda-sell-used-games-amazon-block

    And they doubled down
    Hines said he was "sick of seeing stuff swirling around out there" and wanted to set the record straight.

    "We are not trying to stop anybody selling a used game, we would never try and stop anybody from selling a used game," he reiterated. "We do have an issue with people representing they are selling a new copy of the game when we have no ability to tell it is actually new, so we aren't going to allow somebody to say 'this is new'.

    "If you want to sell your copy of the game, it's 'pre-owned'. You can't say that it's new because I have no way to verify that, and ultimately that person is our customer we have to deal with and if there's stuff missing or things that have happened we're the ones that are going to have to make it right.

    "You want to sell it as new, go to your buddy and say, 'Hey I haven't opened this copy, it's new, give me $60 for it.' If he buys it from you, knock yourself out, but don't go on Amazon and represent yourself next to a retailer who we know we shipped sealed product to and they're going to sell you an actual new copy of the game."
    https://www.eurogamer.net/articles/...egal-threat-on-amazon-marketplace-game-seller
     
  2. tru3f4n

    tru3f4n Red Belt

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    Unused or Unopened copy of The Evil Within 2 works just as well as new
     
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  3. Bob Gray

    Bob Gray Deadlights Belt Platinum Member

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    I think their point is they dont know if its actually still in the original factory wrap. I dunno if fake wrap is actually a thing with resellers.
     
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  4. tru3f4n

    tru3f4n Red Belt

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    Best Buy rewrapped their used games
     
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  5. Bob Gray

    Bob Gray Deadlights Belt Platinum Member

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    Oh, Ok. Thats probably it, then.
     
  6. Quinton Overeem

    Quinton Overeem Purple Belt

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    Who cares. If he has the game it means that he already paid Bethesda, one way or another. Not even at wholesale price.
     
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  7. rob mafia

    rob mafia Purple Belt

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    that ironic moment when "pre-owned" really does mean "new" again.

    (pre-owned actually means it has never been owned, contrary to what morons believe because used car marketing)
     
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  8. warriorscommando

    warriorscommando I will always protect you

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    New doesn’t necessarily mean new as in fresh in box when you’re selling a product.
    It’s already secondhand because it went through the hands of somebody who wasn’t dealing with it as part of business.

    Why you’re wondering why Bethesda is doing this, it’s because using NEW when selling products fucks with their resellers who have very specific deals in place - covered by contracts.

    Distribution law is a complicated subject.

    Bethesda has a very specific chain of distribution of a new product and at every step of that chain there are ironclad contracts in place saying you can’t sell the product to another person who will be selling the product as a new product. So if a ‘new’ product turns up that means somebody in that chain was breaching contract OR you’re a liar because your product is not NEW on the market.

    I’d like to see if this guy has a business or very active account which is a red flag for Bethesda.

    Sherbros and other internet lawyers who have no idea about distribution, trademark and licensing are going to have a field day.

    Of course we did not see the ‘boring lawyer’ part of the C&D letter which says why he can’t say it’s a new product.

    All of this will go above your heads. Because new means new brah, bad company.

    So SIMPLE version - you are Bethesda, you sell your product to Amazon ONLY because it’s a super special promo product. They CANNOT sell it on to professionals, only consumers. Then someone turns up and says he has a NEW product and he looks & acts like a professional seller (doesn’t have to have a store for this). You as Bethesda wants him to pull the product and tell you who the fuck he got the product from because you didn’t sell it to him and he can’t act as a seller because you as Bethesda decide who can sell the product to consumers.

    SIMPLER version - Bethesda can decide who sells NEW products. New doesn’t mean shiny foiled, it means first sale on retail (consumer) market.

    Source: IAAL who works with companies on distribution including expensive cars.

    Nope, except to a small degree. They don’t want unauthorized resellers and consumer protection is one of the more understandable reasons. Which is why they mention it but now people are thinking it’s the main reason.

    First sale doctrine covers products BOUGHT BY CONSUMERS. So if this dude is new games, he looks and acts like a pro.
     
    Last edited by a moderator: Aug 12, 2018
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  9. SleepyBoy

    SleepyBoy Silver Belt

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    He should of listed it as an unopened preowned game.
     
  10. warriorscommando

    warriorscommando I will always protect you

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    I think Bethesda may be overreacting but the Internet is going into hysteria mode over somebody selling used games. He wasn’t selling a used game, he was selling NEW.
     
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  11. KaNesDeath

    KaNesDeath Black Belt

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    Its actually a big problem for developers/distributors. Third party sellers scamming the system leaving the purchaser leaning on the game developer for support. On the surface this may appear mundane. However its the largest revenue loss for game developers/publishers post game launch.
     
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  12. SleepyBoy

    SleepyBoy Silver Belt

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    I agree, a lot of hysteria.
    Bethesda has contracts with various vendors, and if they let anyone sell " new games" then the other vendors won't be too pleased.

    I agree that it's not used, but it's still pre-owned, as he did buy it.
     
  13. rob mafia

    rob mafia Purple Belt

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    *
    post-owned.
     
  14. BjPenn2017

    BjPenn2017 Black Belt

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    This is a company that literally wants to pay people pennies for making their mods and profit off of it because they damn well know the modding community is what truly makes their games great.

    They literally started a war against the modding community because they're greedy fucks, I'm not really surprised at this in the least.
     
  15. deviake

    deviake Some people think cucumbers taste better pickled

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    I actually agree with Bethesda here. There's other descriptors that can be used which would work just fine.
     
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  16. OCGSC

    OCGSC Blue Belt

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    EBgains did like it was their got damn job.
     
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  17. Bob Gray

    Bob Gray Deadlights Belt Platinum Member

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    How is it greed in this issue, though? I mean, they arent getting money from the sale either way, are they?
     
  18. tru3f4n

    tru3f4n Red Belt

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    well Fallout '76 looks like it's nothing more then a FO4 co-op mod crossed with a monster mod set in a new land maybe they got some modders to make it.
     
  19. The Sole Survivor

    The Sole Survivor Double Yellow Card Double Yellow Card

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    I hope the person ends up suing for harassment and making Bethesda pay all the fees, hopefully he drags it out too. Once I buy something its mine. If its not used its not used(in its factory box/wrap) and will be labeled as such.
    IMO this is how they are gonna try to scare people to move to all digital.
     
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  20. Plissken

    Plissken Gold Belt

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    Amazon only has select descriptors for listing items. You can list it as new, or in a separate category as used but with condition descriptors being like new, very good, good, and acceptable. This is not like eBay where you can list your own descriptors in detail. There's no category for pre-owned but unused. While he could have listed it as used-like new (even though it was actually unused), there are literally millions of products listed as new not from licensed retailers. It's petty going after a single person and not a volume seller, but companies usually pick the weak targets as they will capitulate. Bethesda is losing no money from this sale since the item was already purchased and a licensed retailer in Amazon (the licensed retailer relationship being the one the lawyers seem to want to protect) is actually hosting the sale. This is not a listing on PirateBay, this isn't a site hosting ROMS, nor is it some scamming volume seller. They should pick their battles better and not try to create an airtight environment that will only breed negative publicity for their company.
     
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