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