games Bethesda blocks resale of used game

[kv]

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

 

• In what could be described as a massive overreach - Bethesda is sending take-down notices to vendors re-selling Bethesda products on places like Amazon and eBay
• If left unchallenged, this could impact the scope of the 'First Sale Doctrine' in the United States, which offers legal protection for re-selling goods.

The action in question

Quote

Bethesda recently sent out a notice to at least one seller on Amazon’s Marketplace who was trying to sell a sealed copy of The Evil Within 2, demanding that they remove their listing. That letter included a phone number for sellers of Bethesda’s games to call, suggesting that the company is sending out such notices to multiple sellers.

 

 

 

 

The seller's reason for the listing

Quote

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 letter and the seller's response

Quote

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.”

Hupp complied with the demand, but in a reply to Vorys, he pointed out that the resale of used copyrighted goods — such as books, video games, DVDs — is protected in U.S. law through the First Sale Doctrine. This allows consumers to sell a used game, so long as it’s not significantly altered from its original form.

 

 

Bethesda's justification - specifically pointing to the lack of warranty determines that the product is 'materially different' from the 'genuine product' (A legal benchmark for the first sale doctrine).

Quote

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 used game without specific permission from Bethesda. If taken to its logical conclusion, Bethesda’s legal move could spell the end of users selling used games — or even brand-new unopened games — via online sites like eBay and Amazon Marketplace.

 

Bethesda's legal threats

Quote

“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.”

 

[Lurick]

Zenimax can take a long walk off a short bridge for this crap. They know most people won't stand up to them because they lack the resources to fight back.

[ItsMitch]

Bit of a stretch by Bethesda, just a little one. 

[elfensky]

Tbh after the success and wide reach of Skyrim (I think Bethesda was not as well known before it, especially to the more younger crowd) Bethesda and Zenimax went to shit, starting to care more about the dollars instead of the games themselves.

 

They're becoming the new Rockstar. Shark Dragon Cards incoming, anyone? Then again, considering how much money GTA:O brought, I can understand why they want a piece of the online pie.
 

Still though, I thought Bethesda was better than that, though sadly I realize I was very wrong.

[dizmo]

Sounds like their legal department was bored and needed something to do. There are few things that would make me boycott a company, but behavior like this is certainly one of them. 

[Aetheria]

And yet everyone acts as if Bethesda/Zenimax are so much better than EA or WB. Look at their history. Highly litigious (Mojang, Oculus), dodgy business practices (their buyout of Arcane), they have pushed microtransactions as hard as anyone, they keep pushing paid mods, they keep releasing broken games, then rereleasing those same games with most of the same jank. Now they're pushing their own exclusive storefront, and have prototypes of the next wave of crap they're going to pull on their customers with games like ESO and ES:L.

[ItsMitch]

6 minutes ago, Aetheria said:

customers with games like ESO

*Speaking from experience as I've put in like 400 hours into ESO*

ESO isn't that bad for microtransactions, it's all cosmetic and everything is so easily obtained. I've completed the game like 3 times now, ESO:L is the worser one in this imho. 

[Iverion]

Bethesda looks at Disney as a role model it would seem. Oh well. I'm already steering clear from EA & Activision games, I disagree with their actions, ideology and treatment towards consumers and refuse to support them. Bethesda just made that list. Shame that companies are behaving like this.

[Delicieuxz]

Supreme Court Boosts Right To Resell Copyrighted Goods

Quote

The Supreme Court ruled that buyers of foreign copyrighted works may resell them in the United States without the copyright holder's permission, a 6-3 decision Tuesday affirming the "first sale" doctrine of federal copyright law.

 

The decision (.pdf) by Justice Stephen Breyer was a major endorsement of the right of a purchaser of legitimate copyright-protected works to resell or use the work without the copyright holder's permission.

 

I believe that a publisher saying an unopened game may not be resold as "new", or any other restriction on a resale, would be requiring a permission from the copyright-holder, and so would be invalidated by the USSC’s ruling that no permissions are required to resell copyrighted goods.

 

5 hours ago, Aetheria said:

And yet everyone acts as if Bethesda/Zenimax are so much better than EA or WB. Look at their history. Highly litigious (Mojang, Oculus), dodgy business practices (their buyout of Arcane), they have pushed microtransactions as hard as anyone, they keep pushing paid mods, they keep releasing broken games, then rereleasing those same games with most of the same jank. Now they're pushing their own exclusive storefront, and have prototypes of the next wave of crap they're going to pull on their customers with games like ESO and ES:L.

Bethesda is truly among the worst of the worst of publishers. They're ruthless, exceedingly greedy, and habitually practice deceit and manipulation to push their advantage.

 

And nobody should forget or be unaware that all the origin of all exploitative DLC practices was Bethesda's $10 horse armour.

 

Edit: I have presented a lengthy list of ZeniMax and Bethesda's abuse practices in this post that's further into this thread:

 

 

[ScratchCat]

3 minutes ago, Delicieuxz said:

Bethesda is truly among the worst of the worst of publishers. They're ruthless, exceedingly greedy, and habitually practice deceit and manipulation to push their advantage.

 

And nobody should forget or be unaware that all the origin of all exploitative DLC practices was Bethesda's $10 horse armour.

That is maybe a bit harsh. During the Skyrim days they would sell DLC with a content amount approaching that of a full game. I am not saying that they have not become worse but that they were at one point rather good.

[PlayStation 2]

Ah, wasting money on Skyrim ports has really gotten to Bethesda's head.

[ItsMitch]

Bethesda's head of marketing responded. 

[Aetheria]

26 minutes ago, SC2Mitch said:

*Speaking from experience as I've put in like 400 hours into ESO*

ESO isn't that bad for microtransactions, it's all cosmetic and everything is so easily obtained. I've completed the game like 3 times now, ESO:L is the worser one in this imho. 

No, it isn't just paid cosmetics. XP boosters, consumables, service tokens for rerolling and character slots, portable merchants and bankers, skill lines, a whole player class, and a dozen different pieces of DLC which gate access to half of the gear sets in the game. We now have yearly 'chapters' which come with cartoonishly unbalanced crap like Sloads and Time Stop, too (last year it was the warden, with an undodgeable ranged spam attack and a ridiculous spammable healing ult - they eventually nerfed those a bit, but wardens are still just about the hardest things in Cyro to kill, with just about the most annoying gank combo). The 'optional' subscription also brings with it an inventory management overhaul which basically means the difference between being able to roll a crafter and not.

 

And even in a universe where Zeni did just sell cosmetics, in an already paid game, and one as devoid of player rewards as this, that's still pretty bloody cheeky. About the only fancy rewards you used to get from the base game were a few mementos from pubs, and the disguises which were part of quests, and disguises are bugged and barely work in the current game.

 

Oh and as we're measuring, that's just my main. I'm genuinely scared to find out what my play time is across all characters.

[TetraSky]

Quote

is not protected by the First Sale Doctrine, because he is not selling the game in its original form,

Are you kidding me here? He IS selling the game in its original form, it's brand new, sealed, never opened.

Quote

The letter says this lack of warranty renders the game “materially different from genuine products” that are sold through official channels.

How does not having this "warranty" somehow render it to be physically (materially) different from a "genuine product", when it's the genuine product in a sealed packaging?

He's not selling a god damn bootleg here, he's selling the original game he bought but never actually played.

 

Quote

which would include a warranty. 

Oh you mean the warranty that Bethesda themselves are not even honoring and it's all up to the vendor? Yeah, real convincing.
Beside, has someone ever actually made use of a "warranty" with a game through a publisher? Other than the return period at a gamestore? Because that's their warranty in a nutshell, you have to go through the store you've bought it from.

Spoiler

WARRANTY INFORMATION
LIMITED WARRANTY
Bethesda Softworks LLC, a ZeniMax Media company (“Bethesda Softworks”) warrants to you, the original purchaser of this disc and the game software encoded thereon (“Game”), that under normal use the Game will perform substantially as described in the accompanying manual for a period of 90 days from the date of purchase (“Warranty Period”). This Limited Warranty: (a) does not apply if the Game is used for a business or commercial purpose; and (b) is void if failure of the Game has resulted from accident, abuse, virus or misapplication.

EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY
Warranty claims must be made to the retailer from whom you purchased the Game. You must return the Game to your retailer during the Warranty Period, together with a copy of the original sales receipt and an explanation of the difficulty you are experiencing with the Game. At its option, the retailer may either repair or replace the Game. Any replacement Game will be warranted for the remainder of the original Warranty Period or 30 days, whichever is longer. Bethesda Softworks’ and its licensors’ and suppliers’ entire liability and your exclusive remedy shall be, at the retailer’s option, the repair or replacement of the Game that does not meet this Limited Warranty and is properly returned to the retailer. Outside the United States, neither of these remedies nor any product support services are available without proof of purchase from an authorized international source.

 

WARRANTY PROTECTION
Warranty protection is available only to you, the original purchaser. In the event of any questions in this regard, Bethesda Softworks reserves the exclusive right to determine warranty eligibility and appropriate redress, if any.

 

NO OTHER WARRANTIES, CONDITIONS OR DUTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BETHESDA SOFTWORKS AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, CONDITIONS AND DUTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

EXCLUSION OF CONSEQUENTIAL, INCIDENTAL AND CERTAIN OTHER DAMAGES
To the full extent allowed by law, neither Bethesda Softworks and nor its licensors and suppliers are liable for any: (a) consequential or incidental damages, (b) damages for loss of any nature relating to lost profits, loss of data, privacy or confidentiality, or failure to achieve desired results or to meet any duty, including but not limited to any duty of lack of negligence or of workmanlike effort, or (c) indirect, special or punitive damages; arising out of or relating in any way to any breach of this Limited Warranty. The foregoing applies even if Bethesda Softworks or its licensors and suppliers have been advised of the possibility of such losses or damages. Some jurisdictions do not allow limitations as to how long an implied warranty lasts and/or exclusions or limitations of consequential or incidental damages so the above limitations and/or exclusions of liability may not apply to you. This Limited Warranty gives you specific rights, and you may also have other rights that vary from jurisdiction to jurisdiction.

It's quite rare that a game disc these days will be DOA, so frankly, this is just Bethesda lawyers going the extra mile to show how insane they are as usual.

[Guest]

Now I'm 200% not buying Fallout 76. 

[JCBiggs]

i call that number and tell them to go fuck themselves.

 

[dalekphalm]

Their argument is ridiculous.

 

LITERALLY ALL used items lack warranty (well, there are some exceptions where the factory/manufacturers warranty is transferable, but it's not common outside of say, cars).

 

So by selling a used item, which has no warranty, it's no different whether that's a book, a video game, a movie, or a computer.

 

I do not support Bethesda here. I actually would like a charitable organization to fund and provide legal assistance to Mr. Hupp (Leonard French, maybe?) - Bethesda needs to be challenged in court here, so we can set a legal precedence against them.

 

28 minutes ago, SC2Mitch said:

Bethesda's head of marketing responded. 

I would love to hear Pete's version of events then. Has be explained why we are "misunderstanding" this?

[LarryBC]

Pete Hines is claiming now that if you return a sealed game to Best Buy and they give you a full refund, they don't put it back on the shelf and sell it as new.

https://twitter.com/DCDeacon/status/1028323124453027840

 

[Master Disaster]

36 minutes ago, dalekphalm said:

Their argument is ridiculous.

 

LITERALLY ALL used items lack warranty (well, there are some exceptions where the factory/manufacturers warranty is transferable, but it's not common outside of say, cars).

 

So by selling a used item, which has no warranty, it's no different whether that's a book, a video game, a movie, or a computer.

 

I do not support Bethesda here. I actually would like a charitable organization to fund and provide legal assistance to Mr. Hupp (Leonard French, maybe?) - Bethesda needs to be challenged in court here, so we can set a legal precedence against them.

 

I would love to hear Pete's version of events then. Has be explained why we are "misunderstanding" this?

Nope, he just says they didn't stop him selling it nor threaten him but he should be selling it as used, as he puts it "once you drive a car off the lot it's no longer new".

[dalekphalm]

6 minutes ago, LarryBC said:

Pete Hines is claiming now that if you return a sealed game to Best Buy and they give you a full refund, they don't put it back on the shelf and sell it as new.

https://twitter.com/DCDeacon/status/1028323124453027840

 

 

 

There's one point to make here in that: It being sealed is irrelevant. You can go out and buy a machine that will plastic wrap anything, including video games. That's why gamestop has to open a sealed return. Best Buy would hypothetically also open the seal to check, and then sell it as used (or perhaps reseal it themselves and sell it as new).

 

From the looks of it, Pete Hines position is that you can't claim it's "new".

 

I think that's bullshit - as long as the ad clearly states the game is sold "as-is", that already implies no warranty (since no proof of purchase).

[dalekphalm]

Just now, Master Disaster said:

Nope, he just says they didn't stop him selling it nor threaten him but he should be selling it as used, as he puts it "once you drive a car off the lot it's no longer new".

His analogy is wrong.

 

This would be like buying a new car, and leaving it on the lot. It was never "driven" after the purchase.

 

The game was sealed, and never played after purchase. Now, as I stated above, it's really not that hard to re-seal a game so that it looks new, so there's a point there.

[Master Disaster]

1 minute ago, dalekphalm said:

 

 

There's one point to make here in that: It being sealed is irrelevant. You can go out and buy a machine that will plastic wrap anything, including video games. That's why gamestop has to open a sealed return. Best Buy would hypothetically also open the seal to check, and then sell it as used (or perhaps reseal it themselves and sell it as new).

 

From the looks of it, Pete Hines position is that you can't claim it's "new".

 

I think that's bullshit - as long as the ad clearly states the game is sold "as-is", that already implies no warranty (since no proof of purchase).

His position is untenable, Bethesda don't offer warranty anyway. It's up to the retailer to warranty a video game.

[IG-88]

2 minutes ago, dalekphalm said:

 

 

There's one point to make here in that: It being sealed is irrelevant. You can go out and buy a machine that will plastic wrap anything, including video games. That's why gamestop has to open a sealed return. Best Buy would hypothetically also open the seal to check, and then sell it as used (or perhaps reseal it themselves and sell it as new).

 

From the looks of it, Pete Hines position is that you can't claim it's "new".

Don't forget a lot of retailers will sell returned unbroken items as open box at a small discount. So they aren't really selling it as new or used but something in between. 

[LarryBC]

4 minutes ago, IG-88 said:

Don't forget a lot of retailers will sell returned unbroken items as open box at a small discount. So they aren't really selling it as new or used but something in between. 

Best Buy, and pretty much all retailers I know, will not give a full refund for an opened video game. If opened, Best Buy will only exchange it for an identical items, some stores give store credit. Full refund if the product is unopened, though. Which makes the "sealed" part very relevant.

[dalekphalm]

7 minutes ago, IG-88 said:

Don't forget a lot of retailers will sell returned unbroken items as open box at a small discount. So they aren't really selling it as new or used but something in between. 

While this is true, they simply won't accept an open box video game back. Same with software.

2 minutes ago, LarryBC said:

Best Buy, and pretty much all retailers I know, will not give a full refund for an opened video game. If opened, Best Buy will only exchange it for an identical items, some stores give store credit. Full refund if the product is unopened, though. Which makes the "sealed" part very relevant.