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.
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