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Bethesda Blocks Resale of a Secondhand Game (polygon.com) 203

Posted by BeauHD from the all-about-the-technicalities dept.
theshowmecanuck writes: Bethesda just pulled a cease and desist on an Amazon Marketplace sale of one of their games. This, despite the fact that the resale of used games is legal in the USA. Bethesda is saying that because it isn't being offered with a warranty, it is not protected through the First Sale Doctrine. UPDATE: The game in question was sealed and unopened, technically not "used," but being sold secondhand. In a letter sent to the seller by Bethesda's legal firm, they made the argument that the sale was not "by an authorized reseller," and was therefore "unlawful." Bethesda also took issue with the seller's use of the word "new" in selling the unwrapped game, claiming that this constituted "false advertising."

Bethesda offered the following statement: "Bethesda does not and will not block the sale of pre-owned games. The issue in this case is that the seller offered a pre-owned game as 'new' on the Amazon Marketplace. We do not allow non-authorized resellers to represent what they sell as 'new' because we can't verify that the game hasn't been opened and repackaged. This is how we help protect buyers from fraud and ensure our customers always receive authentic new product, with all enclosed materials and warranty intact. In this case, if the game had been listed as 'Pre-Owned,' this would not have been an issue."
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Bethesda Blocks Resale of a Secondhand Game More

Bethesda Blocks Resale of a Secondhand Game

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  • Soon you won't be able to play secondhand games (Score:2, Insightful)

    by Anonymous Coward

    So enjoy it while you can.

  • Shrink-wrap (Score:4, Informative)

    by Anonymous Coward on Sunday August 12, 2018 @07:36PM (#57113532)

    Note that every store worth a damn has a shrink-wrap setup in the back. Being 'in the wrap' means nothing. AC

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Usually when I've seen games shrink wrapped it was quite obvious that the manufacturer had done it because there were barcodes and such rather than simple shrink wrapping.

      It's been years since I saw any software that came in a box where the shrink wrap didn't have some sort of a specific sticker on it. And usually a secondary seal once the shrink wrap was opened.

      • Re: (Score:2)

        by Hodr ( 219920 )

        Not to mention new games don't come in shrink wrap, they come with a shinier plastic that is folded and heat sealed, but not shrunk.

        Shrink wrap is thinner (easier to damage), less slippery, and has a characteristic seam where sealed.

    • That's why they have holographic stickers you have to break to open with case.

    • Still don't have the labels (Score:4, Insightful)

      by sjbe ( 173966 ) on Monday August 13, 2018 @08:21AM (#57115488)

      Note that every store worth a damn has a shrink-wrap setup in the back. Being 'in the wrap' means nothing.

      Yes well that's why they don't have the equipment to replicate the labels that get attached to the shrink wrap. I've never seen a shrink wrap job done by a store where it wasn't screamingly obvious that it wasn't done by the factory. But just in case someone isn't clear that's why companies put fancy holographic labels on the outside that are hard to replicate.

    • Re: (Score:2)

      by fedos ( 150319 )
      You can tell the difference between the original shrinkwrap and the store's shrinkwrap.

  • Easy mistake to make (Score:5, Insightful)

    by AnotherAnonymousUser ( 972204 ) on Sunday August 12, 2018 @07:42PM (#57113548)
    To the average consumer, "new" stipulates that it hasn't had a previous owner use it and that it's still shrink-wrapped. If you search through sites like eBay, you'll find this to be the case as well. In the eyes of the law, it might hold a different definition, but it doesn't necessarily fall in the category of second-hand, which might include a degradation of value. It's still a new, sealed item, and when your selling platform is open to the average consumer, then the tendency is probably going to be for the seller to post it as "new", as that's what their own personal understanding on what "new" is. This seems a highly aggressive stance for Bethesda to be taking, but they're commonly known to be more litigious than many of their other counterparts in the industry.

    • Re:Easy mistake to make (Score:5, Insightful)

      by Anonymous Coward on Sunday August 12, 2018 @08:21PM (#57113672)

      Nah, this is over-enthusiastic Bethesda lawyers trying to scare someone.

      If it ever gets to a court, it'll be laughed out.

      • Re: (Score:2)

        by sjames ( 1099 )

        Unfortunately, because court is a bit like roulette with a multi-thousand dollar buy-in, they'll likely get away with it.

        • Kinda... But what about customers they drive away? I do not support shady companies.

          • Kinda... But what about customers they drive away? I do not support shady companies.

            If you've not already dropped Bethesda for all their previous actions and behaviors, the chances that *this* is finally the last straw are...slim.

            Of course, the same could be said about a disturbingly-large percentage of all the other major game development companies as well, sadly.

            Strat

      • Re: (Score:2)

        by fedos ( 150319 )
        The law firm that they're using for this is apparently very active in trying to get rid of the first sale doctrine.

    • You can argue either way as to whether it'd deceptive or not to call it "new"; personally I'm on the fence about that.

      However, I'm far from being convinced that it concerns anyone other than the buyer and the seller.

      • Re: (Score:2)

        by AmiMoJo ( 196126 )

        "Brand new in box" (BNIB) is a pretty common description of goods that have had possible several previous owners, but which are unused and unopened.

        Even in shops some of the stuff sold as "new" will be stock from other shops that went bankrupt or are just doing stock rotation.

      • Unused in factory packaging = new (Score:4, Informative)

        by sjbe ( 173966 ) on Monday August 13, 2018 @08:34AM (#57115532)

        You can argue either way as to whether it'd deceptive or not to call it "new"; personally I'm on the fence about that.

        If it is in factory original packaging and is unopened and unspoiled then it is "new". This isn't a difficult question to anyone with a functioning brain. If the vendor of the product doesn't want to honor warranties through non-authorized distributors then that's their call but it doesn't change the fact that the product is new. I have a hard time fathoming why they would actually care. If they cannot verify the package hasn't been opened and isn't their factory packaging then they are clueless morons and their packaging sucks. I understand being worried about counterfeits but this isn't going to solve that problem for them.

        However, I'm far from being convinced that it concerns anyone other than the buyer and the seller.

        That's because it doesn't concern anyone else. As long as the product is a legitimate copy and represented accurately as unopened and unused it is none of the manufacturer's business.

    • Re: (Score:3)

      by pots ( 5047349 )

      In the eyes of the law, it might hold a different definition

      I'm not an expert, but that doesn't seem to be the case [thelawdictionary.org]. Also, that's not really what Bethesda is claiming here. They're not saying that they're doing this because the product isn't new, they're saying they're doing this because they don't know whether or not the product is new. In other words, they're divesting the seller of any responsibility and trying to seize control over the entire sales chain.

      There's a question of why they'd be doing this. I'd imagine it's because they've gotten on board the softw

      • the important thing to note here is that ________ is a horrible company and people should stop giving them money.

        Fill in the blank with any major game studio.

    • Re: (Score:3)

      by mysidia ( 191772 )

      This seems a highly aggressive stance for Bethesda to be taking

      If the sale is legal by first-sale, then Bethesda have absolutely no business nor any legal basis for saying how the seller can or can't represent their wares; if the seller describes it as "NEW", and that's because the product was never used -- then fine, that is legal; Nothing gives the publisher any right to interfere with the sale or to try and force the seller to represent the good's condition in a different way.

    • Comment removed based on user account deletion

    • In the eyes of the law, it might hold a different definition...

      Rest assured it does not. (While I'm certainly Not A Lawyer, I'm not so sure that Bethesda's "attorneys" are, either.)

  • Yet another reason to avoid Bethesda (Score:5, Informative)

    by Ritz_Just_Ritz ( 883997 ) on Sunday August 12, 2018 @07:46PM (#57113556)

    It's laughable that they are trying to somehow dry up the game aftermarket for their titles and then shucking and jiving around what the meaning of "is" is.

    Wake me up when they go tits up.

    • Re: (Score:2, Insightful)

      by blahplusplus ( 757119 )

      It's laughable that they are trying to somehow dry up the game aftermarket for their titles and then shucking and jiving around what the meaning of "is" is.

      Wake me up when they go tits up.

      Not going to happen, the average gamer is a fucking moron. The last 20 years of PC gaming we've seen a shift from games we owned and controlled to games companies own largely because gamers are morons and technologically illiterate. The fact that mmo's and f2p microtransaction games even exist is proof the average person on our planet is a moron.

      • Re: (Score:3)

        by tlhIngan ( 30335 )

        Not going to happen, the average gamer is a fucking moron. The last 20 years of PC gaming we've seen a shift from games we owned and controlled to games companies own largely because gamers are morons and technologically illiterate. The fact that mmo's and f2p microtransaction games even exist is proof the average person on our planet is a moron.

        Surprisingly, when Microsoft tried to do what happened on the PC, everyone objected. And Microsoft offered the chance to resell your used digital games It forced M

      • Meh. Most people prefer the convenience of online game stores like Steam. There's always the risk of the platform going under leaving you without the ability to play your games, but for many people that risk is small since they tend to play games for a couple of months or years and then move on to other stuff. If those 10 year old games won't run anymore, only a handful of people will notice. I'm well aware of the issues, but I've bought pretty much all of my games in the past few years from online serv

        • Also, MMO's are fun. What's your issue with them? For them amount of time subscribers spend playing them, they provide pretty good value for money even with a monthly subscription.

          You can't download a pirate copy and 'try it out' for a couple of years.

  • What A Crock Of Shit (Score:5, Insightful)

    by Anonymous Coward on Sunday August 12, 2018 @07:49PM (#57113572)

    Amazon has tools to allow companies like Bethesda to report bad sellers. Bethesda could have simply used those tools and had the listing taken down. Instead they get the lawyers involved as a scar tactic to further scare other potential sellers away ensuring that more new copies are being sold, not already bought copies.

    Bethesda's claims have no merit. Afraid of the game being not new? Amazon has protections in place for that. If the seller takes your money and runs? Amazon has protections in place for that. The game just doesn't work? Amazon has protections in place for that.

    Honestly, fuck Bethesda. They rarely make good games. What they make are large games that are easy enough to mod for others to make their games fun.

    • Re: (Score:3)

      by Bert64 ( 520050 )

      Since the game *was* new, shipped in its original shrinkwrap having never been opened, Amazon wouldn't have done anything - nor should they.

    • Instead they get the lawyers involved

      I doubt it. Sounds more like a bored lawyer gone rogue than an active decision by a company. It takes a lawyer to do something so mind bogglingly stupid.

  • This was bound to cause some blowback from the community (not a lot though, Bethesda, like Blizzard, could shoot somebody in Time Sqaure on live TV and get away with it). Meanwhile there's no upside to it. Can anyone think of any reason to do this?

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Sure thing. If they don't, they run the risk of anyone selling repackaged games as new. Or fake copies. If you don't protect your interests you run the risk of losing them later.

      The seller was dumb. Just say pre owned, like new, still in original shrink-wrap. Buyers are unlikely to care anyway.

      And except for the 24/7 outrage machine on the internet (now with more bots) nobody really fucking cares.

      • What you're describing (losing interests you don't protect) only works with copyrights. Bethesda doesn't have any legal standing regarding what can be done with their products after they've been sold. If someone wants to sell them to someone else, that's none of Bethesda's business. If someone is misrepresenting products to consumers, the FTC would be the appropriate party to contact and handle the matter.

        • Re: (Score:2, Insightful)

          by quonset ( 4839537 )

          If someone wants to sell them to someone else, that's none of Bethesda's business.

          In this one particular case, it is Bethesda's business. The seller is claiming the game is new. In the broadest sense it is new in that it hasn't been played.

          However, it is not new in that this is not the first sale of the game. This is the second sale. If/when someone buys this game and has a problem, who are they going to go to? The seller or Bethesda? Most likely they will contact Bethesda asking for help/support but

          • Re: (Score:3, Interesting)

            by Anonymous Coward

            Why is it a problem if the second owner goes to Bethesda for support? Statutory warranties are transferable, Bethesda have to support the game anyway, and the buyer has a valid license. Legally Bethesda doesn't have a choice in the matter.

            • Re: (Score:2)

              by Xenx ( 2211586 )
              Not everything would be about warranties. What happens if the new buyer opens the box and the disc is missing? As it was listed as new, the buyer would turn to the company to resolve it. But, the seller could have nicked the disc and sealed it back up.

              • Re: (Score:3)

                by Bert64 ( 520050 )

                You turn to the seller to resolve it as the seller didn't provide you the goods you paid for... This is a breach of contract.
                You don't and never did have a relationship with the original manufacturer of the product.

                • Sure, but in this case, the condition is 'used - unopened,' not 'new.'

                  If I go to a local car dealership, buy a car, turn around, and sell it to a third party, having never even unlocked the door, am I selling the a 'new' car? Nope. I'm selling them a previously owned car. Perhaps one in great condition, but still not a new car.

                  • Re: (Score:2)

                    by Bert64 ( 520050 )

                    Well that car has previously been owned by the dealership, so by your definition it's only "new" if you buy it direct from the manufacturer.

                    It's not been used unless one of those owners has driven it.

              • Maybe not everything would, but that was their specific legal claim in the C&D.

          • However, it is not new in that this is not the first sale of the game. This is the second sale. If/when someone buys this game and has a problem, who are they going to go to? The seller or Bethesda? Most likely they will contact Bethesda asking for help/support but they are not the original owner.

            Why should that matter? If it's never been opened/activated/whatever, then so what? Bethesda sold one game and they have to support one game.

        • What you're describing (losing interests you don't protect) only works with copyrights.

          Trademarks, not copyrights.

  • "Sealed and unopened" and yet "unwrapped" (Score:5, Insightful)

    by jaa101 ( 627731 ) on Sunday August 12, 2018 @08:26PM (#57113696)

    The game in question was sealed and unopened, technically not "used," [...] Bethesda also took issue with the seller's use of the word "new" in selling the unwrapped game

    How can it be both "sealed and unopened" and yet also "unwrapped"? Is there an argument about it or is this some distinction that's lost on non-gamers?

  • "New" describes the state of the product, irrespective who the seller is.
  • Comment removed based on user account deletion

    • Re: (Score:2)

      by sjames ( 1099 )

      Scalping is a bit different from someone making a one off sale of a single copy that they bought and never got to use for some reason.

      • Comment removed based on user account deletion
        • I guess that's true if there are a limited number of games on sale. I think usually discount sales on games are limited by time, not by quantity. Not always, though.

        • Re: (Score:2)

          by sjames ( 1099 )

          The scalper has two fists full of tickets for multiple concerts and sells for substantially above retail because he and fellow scalpers created a shortage. The circumstantial seller has 4 or less tickets and may sell for a bit above retail mostly because he's offered above retail.

          The video game reseller can't get above retail because you can still just buy a copy retail. But the 'scalper' will still have fists full of multiple titles while the circumstantial seller will have one each of a few titles at most

          • Comment removed based on user account deletion

            • Re: (Score:2)

              by sjames ( 1099 )

              One way to tell is have two people try to buy the same game from a seller. If both get a copy, it's scalping. If one gets a copy and the other gets "sorry, I sold it already", then it's likely a circumstantial reseller.

              As for the condition offered, what, other than "new" would you call a game still in it's original shrink wrap? It certainly wasn't used.

        • why not make tickets carry a name?

        • Re: (Score:2)

          by Calydor ( 739835 )

          What kind of idiot scalper gets in line, buys a ticket, goes back to the end of the line, buys another ticket, repeat ad infinitum?

    • Re:It makes sense, it's like scalping (Score:5, Informative)

      by omnichad ( 1198475 ) on Sunday August 12, 2018 @09:37PM (#57113890) Homepage

      The first sale doctrine explicitly makes this legal in the US. And furthermore, in Bethesda's statement:

      We do not allow non-authorized resellers to represent what they sell as 'new' because we can't verify that the game hasn't been opened and repackaged

      They can't unilaterally not allow something. The seller doesn't have a reseller agreement that they would be breaking. They have no relationship to the company whatsoever, so the company has absolutely zero standing to sue.

  • Being an actual customer sure is a shit deal.

  • Wtf? (Score:3, Informative)

    by reanjr ( 588767 ) on Sunday August 12, 2018 @09:39PM (#57113896) Homepage

    Bethesda's argument doesn't make sense. If I am a shopkeeper I can buy things from one market and sell them at my store. I don't have to offer any sort of warranty to do this.

    Why would a video game be any different?

    • Re:Wtf? (Score:4, Informative)

      by Anonymous Coward on Sunday August 12, 2018 @11:11PM (#57114188)

      This differs between regions. In Australia, for example, that DOES obligate you to warrant the item. Whether you take the hit yourself or pass it up the chain to the wholesaler, manufacturer, whatever, that's your business. But your deal with the customer is that YOU provide the warranty to them. Not only that, but consumers in AU can avail themselves of the warranty outside of your stated warranty period, if your warranty period isn't towards the reasonably expected life of the product.

  • ... that they perpetrated a years-long effort to create Bethesda.net and launch a new version of Skyrim to utilize it, for no other reason than an attempt to destroy the free and open source modding ecosystem for the game and and replace it with one they control so they can monetize the hell out of it... to the detriment of their customers.

  • If it is in the shrink-wrap is the EULA enforceable? Wouldn't it still be preowned?

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