Legal move could have far-reaching consequences for used game sales
Title changed to reflect Polygon's updated headline. - coolbeans
"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." BREAKING NEWS: Bethesda has just discovered the used game market?
Almost no product allows the warranty to carry over. This is such a reach out deserves its own definition.
Bethesda could be the 1st publisher to go fully digital. there games are popular enough for them to risk it.
Bethesda's side won't hold up in court…Their argument that the game is materially different b/c of a warranty preposterous. BUT if Bethesda were to win in court, that wouldn't just change used video games…that would change used EVERYTHING… If a company can claim that a product is materially different based on a warranty…that would apply to cars, TVs, laptops, computers, cell phones…Heck, you could probably apply this argument to a house…EVERY consumer product would be affected… I dont see our courts in the USA opening up that rabbit hole
@uptownsoul Except that software has always been different from physical products. When you buy software you only own the medium on which it is delivered, plus a license to use that software. That license may or may not be transferable, depending on the terms of the license and local laws which may override parts of the license. So while I think Bethesda are overreaching here, a win for them likely wouldn't have broad consequences outside of software.
Not gonna be an issue when we go all digital in the next few years.
If Bethesda wins this, prepare for the end of used physical games. This is bad.
@uptown Bethesda wouldn't want this to go to court, They know they is a weak argument. And the last thing that publishers want is for the courts to finally rule that the customer has the right to resell games. They want it to be judged without precedent outside of court...likely hoping whoever they make the claim against will acquiesce and just do what they want. Personally, I think it's long overdue for such a matter to go to court. The publishers have been fighting the consumer and retailers over this for too long, and it's about time the consumers get the chance to push back. They did so once with MS, and MS backed off so there was no market or legal test for the matter at hand. @kneon A TOS does not remove one's ownership of the actual license. As such, since the license is attached to a physical medium, that license is transferable. It doesn't really matter what the TOS say. If it did, the publishers could have stopped used games long ago without having to worry about legal consequence. But again, they don't want it tested in court, which tends to take a dim view of overbearing TOS which strip away consumer rights. In short, the license itself is transferable, because it is itself a physical product.
It depends on the country. In Australia for example a warranty is on the goods, not the buyer. Therefore if you sell an electrical item or car etc then the warranty transfers to the new owner. The same could be applied to games. In this case as Video game companies claim they own the licence then any warranty would be on this and should therefore be transferable as the ownership has supposedly not changed. Regardless this move would not be allowable in some countries because warranty laws are much stricter. We also have implied warranties in Australia, which supercede manufacturers warranties. So for example a top of the range tv should be expected to last a number of years and should it break after the manufacturers warranty has ended you could still get them to repair the item as it would be implied that a tv, fridge, cooker etc should last a reasonable number of years prior to failing.
Incorrect... Bethesda wants to end the used game market.
You're kinda dulling the sarcastic tone of my first comment. :P
@coolbeans... yeah, kind of does suck after all these years... Now they want to end used game sales...If you can't trade in games physical games lose some luster... after all if you can't trade them in for credit... Can you still sell them used legally anyway? Of course... That all hinges on this court case... and damn... after reading the article... they are going after anyone trying to sell used copies... Not just gamestop… Only benefit for physical media at that point would be it doesn't count against download cap-space… Because, if Bethesda wins you know other companies will follow suit.
All the seller has to do is remove the plastic wrap, and sell the game in "Like New" condition. Problem solved.
Yep, turns out the seller is just a liar, trying to sell an opened game as new. This is a non-story! Who does he think he is, Gamestop?
@Cyber The question then becomes: why should the seller be forced--by the potential of financial ruin--to intentionally devalue his own property to appease Bethesda? It's not a tough cookie to crack for anyone familiar with the second-hand market: unopened by seller qualifies as "New" to the vast majority of people b/c that's the condition it's in. @letsa_go "Yep, turns out the seller is just a liar, trying to sell an opened game as new." All of seeing suggests the game was never opened.
@Coolbeans I agree it’s silly that he has to remove and sometimes devalue his own property to resell it. He can always describe the game as “never used”, “like new” or “mint condition” and still get full value for it. Technically, he doesn’t even have to disclose that it’s still in the original wrapper. As long as he doesn’t list it as “New”, that seems to satisfy the lawyer’s.
Games have a warranty? What kind of warranty is there? Do they replace the game if it doesn't work properly out of the box? That'd be fun to call in through a Bethesda game wouldn't it? Imagine if they got tens of thousands of warranty claims for their buggy releases. Honestly, GameStop has a better warranty if something goes wrong with the disc, and it only cost $2. Otherwise, I don't see how a game is materially different if it doesn't have a warranty, because I can think of a single instance of anyone, ever, in almost 40 years of gaming, calling in a warranty on a video game. Also, every other product that has a warranty is still covered under the first sale doctrine. I really hope this matter eventually goes to court, or at least through some other publisher, to finally settle the issue of ownership, and to settle the matter of if a TOS actually is a binding contract which prevents resale.
Yeah games do have a warranty if you listen to the game stop employees they would rather you purchuse their disc protection plans but in reality you have a 90 day warranty that entitled you to return and repair a game that has a physical defect Ie the disc won't read. Trust me i got into a huge argument over my brand new mass effect 2 game which could not be read when I first brought it eb games or game stop stood there trying to tell me I was out of luck until I pulled out the instruction manual flipped to the last page and read the warranty statement out loud Things can happen on production lines and in shipping games can pop out of cases and scratch along the spindle holding them in place
In truth, you should be able to spot the fine print about a warranty on the back of the box, the manual, or elsewhere when purchasing new. The issue is the absurdity of claiming it being purchased w/out warranty makes it somehow "materially unoriginal" (or whatever legalese they want to employ). "Such purchases without said warranty aren't under the First Sale Doctrine" Casual response to Bethesda: Ummm...the ENTIRE premise of used games is underpinned with that risk of not having a warranty. Part of the reason why they're cheaper since time immemorial.
@Chaos My original comment wasn't really meant to say that I wasn't aware of the warranty. it was to highlight the real lack of substance to that warranty. When it comes to a defect in manufacturing, I'd consider that a defective product. I don't go through warranty service for something defective like that, I take it back to the store and get a replacement or my money back. That isn't warranty service, that is simply something that retailers offer because they can return the product back to the distributor and get credit or a replacement. Personally, I'd give up the offering of a warranty to have the right to resell my game as new if I hadn't opened it. I have never once exercised warranty service on a game, but I have many sealed games which I have or may resell one day. In the gaming market, new is considered something that's shrink wrapped. @cool Yeah, I've read these warranties before, although I recall that was back when we had instruction manuals. They're pretty standard boilerplate. I also think that at some point, someone has had to exercise that warranty service, but a defective product like this is usually defective out of the box, and the more natural way to remedy the situation is to take it back to the retailer. But I get what you're saying. The material substance of the game isn't the warranty. It never was. Warranties are a service to give the consumer confidence in the product they're buying, and since that material aspect of it I'd imagine is rarely exercised through the manufacturer itself, claiming it material to the purchase is laughable at best. I actually wouldn't mind this going to court. Not that it'd be productive for the seller in this case, but it would actually finally settle this at a precedent level, because I think even a court would laugh at the argument, and in cases like this, the courts tend to side with the consumer and their rights. A nice extension to this is looking at the Terms of Service. When does warranty service start on a video game? When it's first purchased, or when the user first agrees to the TOS when they open and play the game? Since the user can't agree to the TOS without starting the game(its implied), and they likely can't tell if it requires warranty service without playing it, then do these companies not have to honor event he first sale of the game if the user decides to throw it in their back log for a year or more before realizing that its defective? On a side note, I had a copy of Skyrim VR handy, and there is nothing on the box about there being a warranty attached. It might be in the TOS which I'm sure is available somewhere hidden away so no one ever sees it. I looked at a couple other games I had on the table near me, and none of them listed any kind of warranty claim either. So I asked my wife, and she said that if the warranty isn't explicitly stated, implied, or expected at large, that such things aren't considered as materialistic to the purchase of said product. However, she said that that's not her area of legal expertise, so she isn't sure that's 100% correct.
I don't think you understood. You're claiming this is the used game market right? But in fact it isn't. I never buy games from a random dude claiming unopened at full price. Unopened or not you get a used price. what Bethesda is saying is to stop trying to pass a game you left the store with as new. I believe to do any form of a warranty claim you need a receipt
-Well...yes and no. Your response did make me double-back to realize Polygon had updated the article twice since I recall seeing it (which I do appreciate). Mentally speaking? I just splashed "used game market" to reflect the initial title whereas my mind's placing this under the umbrella of the second-hand market in general. The two are just interchangeable to me. -"I never buy games from a random dude claiming unopened at full price." I don't recall the article specifying this guy sold it at full price. Considering how recent this is, The Evil Within 2 has had several sales for $20 (new) since release. -"Unopened or not you get a used price. what Bethesda is saying is to stop trying to pass a game you left the store with as new." Speaking as someone who peruses Amazon, ebay, etc. too much, it's been commonplace for over a decade to describe an unopened copy of a game as "New." The vast majority of buyers + sellers operate under the mentality that new translates to "never being touched by human hands after being wrapped from the assembly line." Bethesda shouldn't have any say on the matter. This is between the buyer & the seller looking to make a trade--and the website should conflict arise.
Not enough angst. 3/10
So if i cant resale my game why buy it legally from a retailer and not just downloaded from a totternt site?
Read the article... it says it was unwrapped - so that’s the issue. Although after re-reading it, it also says it was sealed. So iwhich is true? If it was unwrapped then he can’t sell as ‘new’. If it’s sealed then they may be like Sony and MS studios in the uk wher you can’t list their games as new on the store
From my understanding. It was sealed, never unwrapped, but was selling it as new. It’s all in the verbiage. It should say “second hand” or maybe “never opened” as opposed to new.
Wrap or unwrap, it sounds like a gamestop issue 🤩
They're using a pure technicality, by claiming that since the copy being resold doesn't have the original warranty, then the product has "materially changed" ( <- legalese BS), and therefore falls outside of the first-sale doctrine (which is what allows the reselling in the first place). Imagine not being able to sell your Corolla because it no longer has Toyota's original warranty. That's what's going on here, and if these legal weasels are allowed to set a precedent, there goes the used-game market.
In his situation sellers list things like this as "like new, never opened" Legal is so caught up in small details so him listing it as "new" is the problem.
Agree. F these greedy bastards. I say torrent away.
Wait, so let me get this strait, because you dont get what you want, you might as well break the law? That is such a terrible argument.
It's what America was built on.
@Psuedo Best comment! Ahahaha It's fine to steal land and murder hundreds of thousands of people, but you best not be downloading games for free xD not in the land of the free...
Hmmm..let's see. Maybe because it's wrong to steal?
Yeah this isn't a dangerous precedent to set at all. Good job Bethesda.
Bethesda why are you trying so hard to be so disliked. EA is anti consumer to many but even they wouldn't try this News flash Bethesda retailers can choose not to sell your games at all and since your actions suggest you don't like steam where are you planning to sell your games? Go back and read what gamestop did when ms announced Xbox one. They sent all their subscribers email informing of the fact Xbox one had Drm and ms to this day are trying to repair their Xbox brand image I know many hate gamestop but they are one of the biggest gaming retailers in the business. Here is another fact when someone trades their games they aren't forced to buy used with store credit. I remember a while ago reading an article that suggested a big chunk of that games trade in store credit goes towards gamers buy new copies of newly released games So much for we care about single player yet next FO doesn't even have SP
This will not be good for Bethesda.
There has to be something more to it, no publisher can be this stu.. *looks at nintendo, EA, Activision ...... oh well
Good work Bethesda. Time to get rid of the used market. It's such a racket
Yeah, for all things. Used car market is a racket, too. Consumers should be stuck owning a product until their death, I say... In fact, we should get together and demand our government set up a police force dedicated to busting up garage sales! /s
Used market will affect new because there is actual data that shows many who sell or trade in thru games use that money/store credit to fund the purchase of newly released games
Jesus do you want gaming to break down and be affected negatively? Why would you want used games to go away? So much of gamer's lineups are used games because they found them cheaper or after they were pulled from stores, or classic titles they never experienced. I can't believe people go out of their way to want something as big as this gone just because it doesn't affect them.
Really? So the thousands of older games I've brought used is a bad thing? Games that I'd be damn lucky to find new in a box? You do realize that this also means that if someone buys a game, never opens it, then decides to sell it, that that isn't allowed either? This means that every single copy has to come from someone who is pretty much authorized to sell new copies of games. Basically, anyone that has a business license to deal with distributors. Now, maybe I'm not really sure about the definition of a racket, but it seems to me a publisher, or an industry, holding free market merchandise hostage and restricting its availability falls within that definition somehow.
Free Market, as in if that guy wanted to sell it "new" then he should have gotten a proper business license and gotten Bethesda's okay to sell it "new". "This means that every single copy has to come from someone who is pretty much authorized to sell new copies of games. Basically, anyone that has a business license to deal with distributors." Uh, yeah, that's kinda how all industries work. You need a business license and agreements between parties to sell licensed properties. Also places like Gamestop also have to register for a resale license. This is why Gamestop takes down all your information and drivers license and such when you sell to them so they can report their resale products. "Free Market" doesn't mean everything is all just black market sales. If you create a product, then go ahead and privately sell it, but if you want to sell someone else's property then you'll need the proper licenses. Hence why this guy couldn't sell that copy "new" and why Gamestop won't buy sealed copies.
I have a business license, and am even considered a reseller for Sony, nintendo, and MS. The only aggrement I had to sign was in regards to their hardware. Nintendo does have some for their software which stipulates I can't sell over MSRP, but that's the only agreement I signed in relation to software, besides a general industry wide agreement through my distributors saying I won't sell a game early, or release information about it early. Not once did I need Bethesda's permission to resell their games....which I have. I can easily get Bethesda games through my distributor and haven't signed anything that legally binds me to Bethesda in any way. I source from a distributor. This guy sourced from a copy he brought from some retailer. What difference does it make where he sourced it from? i mean, I source from Amazon at times for their 20% pre-order discount because it's cheaper than my distributor offers, and I have good sales for overseas products. Am I not allowed to resell that product because I happen to source from a retailer instead of a distributor? If Bethesda or other publishers want to control the flow of their products like that, then they need to require that all companies that resell under them to sign such an agreement. And most industries do not work the way you think. Most manufacturer sell to distributors, who then sell to retailers. More often than not, there is no agreement with the actual manufacturer, unless said company sources directly from the manufacturer. So, I'm afraid you are wrong.
I own the product and bought it with my money and they didn't mind that, so why the bother of reselling it? ohhh I know what the called morons beung extra greedy. I think they are desprate because that technology can't yet support Skyrim on mobiles or calculators.
Maybe read the article and not the headline? He listed it as a ‘new’ copy when it was opened. That’s the issue. Not that you can’t sell it in general, you just can’t sell on amazon (in general) as new if the item isn’t still factory sealed
Read the correction...game was sealed
I feel sorry for this guy because he fell for a trick. After reading the article in its entirety a couple things are clear: 1) There is no way Bethesda sent this letter to him. Either Bethesda is deluded and has never heard of the used game marketplace, or they're stupid and think a tactic like this would work. 2) They "threatened" the guy with legal action saying, "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". This is bullshit, and will not happen. Not now, not ever. Why? Because the costs of hiring an attorney to go after this guy, and all the legal fees associated to go after this guy who's selling a game worth less than $50(as of time of writing this reponse, used EW2 on amazon is $25). That means this guy's offense is worth $25. Nobody will come after this guy. 3) Whoever sent this letter, was a liar and playing tricks. Even if we assume Bethesda really sent it, they won't go after him. The guy's case is just worth $25, and legal action would cost bethesda significantly more. 4) Neither Vorys, nor Amazon, nor Bethesda commented. Most likely not true, and I believe Bethesda knows better than to pull some backhanded poor publicity stunt like that. In conclusion, the guy can keep selling his used games and nobody will go after him, whether they're sealed or not. He's just selling them online like everyone else, and this has been done for over a decade, whether through craigs list or amazon or ebay.
I agree, this comes across like somebody was playing a prank and he fell for it.
Maybe it is a trick, or maybe it is vultures being vultures. Even if the damages were minuscule, the firm could be designed to feed itself on the fee shifting nature of the claims. Meaning, because these types of claims can result in an award of attorney fees and costs, some practices take on low damages cases, bill the hell out of the file, and get paid from the losing side on an insignificant claim of actual damages. I don't know if that is what is happening here, but one look at the firm's website makes me believe they're not exactly fighting for justice. Just my opinion. But like you said, their case is ridiculous at best. I'd be curious if the firm has ever litigated one of these or if they just take companies' retainer money and send bullshit letters out. One way or the other, it looks shady.
You must not know Bethesda's history with lawsuits and there have been numerous. The company was founded by lawyers. I am going to say I highly doubt this is a trick. If I'm wrong great, but I doubt I will be.
It very well could be. I'm assuming the quote is from the actual letter. It doesn't really sound like a letter of intent from any real attorney. They don't say, "we intend to file a lawsuit against you", they'll usually say something along the lines of "We may exercise our rights to pursue legal action -in some way". At least according to my wife who is a lawyer. I had things like this from debt collectors after my identity was stolen, and it was usually more broad. However, my wife says that specific instances of what they're claiming will be cited for the reason why they believe they have a case. That being said, real or not, letters like this are more often than not used to scare people into backing off, and rarely go to court. However, it's not unheard of for companies to make an example out of someone. Anyhow, there is some talk about this on Ebay. And they apparently do represent other companies against people selling things which they supposedly aren't allowed to sell. Here is one link, and there are others on Google if you search Varys Law Firm. https://community.ebay.com/... And yes, the guy can keep selling his games. Even if it were to go to court, a letter of intent can not officially remove that right from you if there is no legal precedent which stipulates why he can not. Specific illegal activities would have to be cited for it to even affect him in court, as he, as we all do, have the expectation of being able to resell our stuff like this. It wouldn't be until its looked at by the courts and a injunction is passed down pending judgement, that he would be forced to stop.
great game publisher, bad business company
Oh boy here we go. I don't know why, but I really do think that next-gen will be shaking things up with the gaming market place whether it is streaming, cloud, digital or somehow figuring a way to block used game sales. It's understandable from their point of view, games are getting rather expensive and if they are just barely breaking even with their budget and how much they make then they are going to want to find out how to maximize their profit. Let me ask you this guys, if it were down to a few choices what would you rather have them do. Go all digital, cloud streaming service, some kind of used game block (maybe that game comes with a code and you must go online to enter that code first time to verify you are the owner), or just drop gaming altogether? Let's face it guys, as much as many of us don't like these changes they will eventually push for it and it may force us to make a decision to accept it or deny it. Sure it didn't work that well last time back in 2013, but it's now 2018 and technology is advancing. Most people do have access to some kind of internet whether via smartphones, or a computer at a local library or something. I'm not saying it should be some online check in every 24 hrs, but I could see us requiring to enter a code to verify that we own the game on our account (it would be a one time online check-in).
"Most people do have access to some kind of internet" Yes, some kind of Internet 70 GB data cap and 512 kbps throttle speed
Its still something
They've been pushing this stuff since the beginning of last gen. Instead of saying which choice would we make, why not just keep fighting against these companies so we don't even have to make the choice.
still something I'm using it right now but if I spend it on games I won't be able to do a real work because 512 kbps is too slow even for browsing these days
Doesn't Bethesda have anything better to do than this? Are they doing so poorly financially that they feel the need to hunt used games? Disgusting
I mean we don't really know that. Do you know how much some of their games made in terms of profit? I'm curious please tell me. Maybe it's more about looking at the big picture here. I don't like it, but it's understandable why they are doing this.
i really hope they are doing better than this, this seems petty and desperate
Nobody bothered to read the article? Judging by the comments in here o would imagine they saw the title, decided to post their opinions and then end up complaining about things the article isn’t even about. It’s all about the guy with an opened game trying to sell it as ‘new’. According to Amazons T+C directly, you can’t sell an item as new if it’s not. He should have put it as ‘like-new’. Here in the UK, you can’t sell many big publishers Games new on amazon - Sony is one of them. If you try and list a ‘new’ song published game the. You get an error saying you’re not authorised. That’s why some people create a duplicate item so they can list it - until Amazon takes it down.
They updated the article to fix that typo. Game was sealed.
Ironically it looks you didn't read it again because they changed it to say it was sealed.
if they changed it AFTER I read it then why is it ironic? I was going off what it said when I read it and at that point it made out the guy was selling an opened game as 'new' which was causing everyone at the time to presume Bethesda was trying to stop general second-hand sales - which wasn't the point in that context.
Since I know you were basing this off the original article which didn't mention it was a sealed copy. So why would a law firm, not associated with Ebay, that Ebay even says to ignore to many Ebay users who get similar letters from said law firm, send out letters to its users to deal with an internal matter where they simply would just remove the listing until you fix the problem? Assuming this is real, if the law firm named Bethesda, then Bethesda would have retained them. If Bethesda had a problem with the nature of the listing, then they would have had to take it up with Ebay, which would have implemented its own policy like it has god knows how many times. happened to me once when I accidentally marked something as new instead of Like New.