Bethesda (most likely Zenimax) Blocks Sale of Used Game

https://www.polygon.com/2018/8/11/17661254/bethesda-sell-used-games-amazon-block

Long story short - Bethesda (or more likely their parent company Zenimax, given how litigious they have been in the past) is sending letters to resellers of The Evil Within 2 telling them to take down their listing. They argue that the lack of original warranty makes it an “altered” version of the original product, therefore negating the First Sale Doctrine. This is potentially huge - if this works, I’d say used games sales will be a thing of the past within 5 years.

I don't see how this would stand up in court. The precedent this would set would essentially destroy first-sale doctrine. This ruling would allow a company like Ford to say I can't sell my Ford Focus because the warranty provided when I bought the car from the dealer has expired and therefore the car is a materially different product now.

The only part of this that holds any water, at least based on what I've read, is Bethesda's claims against him calling the product new. Bethesda does have the right to control the initial distribution of their copyrighted work. Essentially, they choose who can sell "new" Bethesda products. Since this guy isn't an authorized reseller he technically can't sell a "new" game in the sense that in theory this game came from one of Bethesda's resellers and not from Bethesda itself.

I swear Bethesda has the shittiest lawyers on call. I feel like every time there's a story about a garbage legal move in games it comes back to these folks.

Not only is game preservation in a precarious situation, but seemingly, game ownership, as well.

Is their entire argument on this that he's calling it new/it's sealed? Seems the easy work around is to open and it call it 'open but never played to get around Bethesda's semantic bullshit' on the listing >.>

I’m not a lawyer (yet...two more years and one long-ass bar exam to go), but their theory about first sale doctrine seems like something that only works when you’re threatening legal action against scared Amazon users with not enough funds to lawyer up. I don’t know for certain, but it seems to me like hanging your legal hat on the idea that an ephemeral limited warranty is materially significant enough to block a resale is pretty laughable, even if non-tangible aspects of a product can be considered material. Would love to see some pro-consumer foundation like the EFF toss a few pro-bono attorneys at the next case like this.

EDIT: Would like to add, as per some other comments in the thread, that their issue with him claiming it to be a new copy seems on its face much more valid. It's the rest of their argument that's Super Questionable And Should Probably Be Litigated At Some Point.

Lets get a thing straight; It wasn't "blocking a used sale" as Polygon would like you to believe. What's happened (As I understand it) is a dude is selling a sealed copy of Evil Within 2. His wording, unintentionally I would suspect, makes it sound like this copy is a "New" retail copy when it is an unopened "Used" copy.

Now, when a retailer sells a product they are obligated to provide certain return/replacement and warranty services. The seller, being a lone guy just getting rid of something, isn't capable of providing these services. This creates a scenario in which Bethesda/Zenimax may become responsible for the services (laws differ) and take on other responsibilities that would normally fall on the retailer.

Zeni/Beth's lawyers, being lawyers, would rather that they not have to take on these responsibilities as the seller is not one of the companies "Authorized Retailers" who have a contract that likely keeps responsibilities clear.

So, yes, wadtomaton is correct in that a few semantic changes would have made this never happen to begin with.

@wadtomaton: Just opening it is going to drop the value to used because as soon as someone sees used they’ll just buy the cheapest one.

I guess looking at Amazons categories they do have something of a point.

New:

Just like it sounds. A brand-new, unused, unopened item in its original packaging, with all original packaging materials included. Original protective wrapping, if any, is intact. Original manufacturer's warranty, if any, still applies, with warranty details included in the listing comments.

This seems like a problem with Amazon's default categories more than anything. "Mint" could carry the same connotations as "New" while avoiding this... unpleasantness. They could even add "Sealed" and "Open" subcategories, since they have multiple conditions for "Used."

This is just lawyers being lawyers. Even if it went anywhere it's not gonna put a stop to used game sales in any way, you're just not gonna be able to use certain descriptions or have to include some sort of disclaimer.

I am ok with layers being layers but this is turned up to 11, you must be really shitty human being to do this. Knowing your wrong and knowing the defended wouldn't probably defend himself in the court of law.

The situation sucks, but let's be fair for a moment and stay calm - if the game had been listed as "used" rather than "new" there would have been no issue for the lawyers to swarm upon; furthermore, the seller can list the game as such and have no issue.

The legal argument being made was with the sealed game being sold as "new" by a member of the public, despite it still being sealed. It's low, petty, and stupid... but I'm not sure this is the battle we want to go to the mat on.

This is, no doubt, a super dickish move, but used games can still be sold. First-sale doctrine and your right to sell your games is not being argued against here - non-retailers selling unopened games as "new" is.

People generally consider a sealed and unopened game as being new and no different from buying from an actual retailer which is why this is stupid.

So Zenimax are absolute scumfucks, huh?

I tried to sell a sealed copy of a dupe game I got as a gift and was told at GameStop that they cannot take a sealed copy due to pawn shop laws. They asked me to go outside, open it, and then it can be sold used. Fucking weird times.

I'm not too fond of what Nintendo does, either, even though they're more morally in the right.

https://motherboard.vice.com/en_us/article/bjbped/nintendos-offensive-tragic-and-totally-legal-erasure-of-rom-sites

"As a professor, I very frequently see students spinning their tires trying to solve problems that were already solved in 1985," Bennett Foddy, who teaches at New York University’s Game Center and is the developer of games like QWOP and Getting Over It, told me in an email. "And just as you would if you were teaching painting or music (or math), what you do as a teacher is you send them to the library to study the old classics, to see what they did right and wrong. That’s the only way we can make progress in the sciences, the humanities, or in the creative arts."

The problem is that even though NYU has a good collection of classic console hardware and games, it only covers a minuscule proportion of the total history of games. It doesn't include 8- and 16-bit computer games, which were distributed on magnetic media which has long since been corrupted. It doesn't include coin-operated games, which are prohibitively expensive for a library even today, and which are harder to access than ever now that arcades are practically gone. And, of course, most people who are getting into games don’t have access to NYU’s library at all.

"If I was teaching poetry, I could send a student to read nearly any poem written since the invention of the printing press, but in games my legal options limit me to, I would guess, less than 1 percent of the important games from history," Foddy said.

Michael Moffitt, a 25-year-old software engineer in California, told me in an email that he spent most of his time with ROMs as a kid making weird graphics mods for Super Mario Bros, Dig Dug, and Pac-Man using a VROM editor built into NESticle, a groundbreaking emulator that, as Motherboard wrote in 2017, helped turn retro gaming into a modern cultural force.

What is really beyond the pale, according to Foddy, is that Nintendo's lawsuits or the threat of lawsuits is shutting down sites or forcing them to remove all ROMs from their site, even though Nintendo ROMs make up only a tiny fraction of the content on those sites.

"Most of what Emuparadise was hosting was work by companies that are now defunct and which have little or no chance of being sold legally," Foddy said. "This is one of those situations where copyright law just seems busted—though I assume they’re legally in the right, the companies bringing these takedowns are just committing massive cultural vandalism, in my view."

https://www.nintendo.com/corp/legal.jsp#good

If Bethesda wants to claim they offer a warranty that's fine. HOWEVER they need to honor that warranty when their buggy ass software keeps crashing and I want my g/d money back.

As others have noted, it seems their issue wasn't the sale of a used game but rather the listing of a pre-owned game as "new." I can understand why this might be an issue (especially given laws in some countries which protect customers against faulty products for a certain lifespan). Amazon just needs a way to indicate that a product is "like new" (or "in mint condition") while also being clear that it is a pre-owned product.

Given how anti consumer bethesda/zenimax is i have been pretty surprised how popular they are in this day and age. Unless the guy is legit running a business selling unauthorized copies of bethesda games on some drop ship type thing, then this is pretty scummy.

lol,i tried to trade in a copy of halo reach i got for free from some xbox live promotion and they looked at me like i stole the damn thing. After that i stopped fucking with gamestop too much.

I mean they do have the specific 'Like new' category as well, which is basically the seal has been broken but the product is otherwise untouched.