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Bethesda blocks resale of a secondhand game (update)

Legal move could have far-reaching consequences for used game sales

Update:

Title changed to reflect Polygon's updated headline. - coolbeans

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coolbeans94d ago

"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?

arkard94d ago

Almost no product allows the warranty to carry over. This is such a reach out deserves its own definition.

NewMonday94d ago

Bethesda could be the 1st publisher to go fully digital. there games are popular enough for them to risk it.

uptownsoul94d ago (Edited 94d ago )

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

kneon94d ago

@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.

Skull52194d ago

Not gonna be an issue when we go all digital in the next few years.

UltraNova94d ago

If Bethesda wins this, prepare for the end of used physical games. This is bad.

rainslacker94d ago (Edited 94d ago )

@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.

conanlifts94d ago (Edited 94d ago )

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.

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agnosticgamer94d ago

Incorrect... Bethesda wants to end the used game market.

coolbeans94d ago

You're kinda dulling the sarcastic tone of my first comment. :P

agnosticgamer94d ago (Edited 94d ago )

@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.

CyberSentinel94d ago

All the seller has to do is remove the plastic wrap, and sell the game in "Like New" condition. Problem solved.

letsa_go94d ago (Edited 94d ago )

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?

coolbeans93d ago

@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.

CyberSentinel93d ago

@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.

rainslacker94d ago (Edited 94d ago )

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.

Profchaos94d ago (Edited 94d ago )

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

coolbeans94d ago

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.

rainslacker94d ago (Edited 94d ago )

@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.

steven83r94d ago (Edited 94d ago )

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

coolbeans93d ago (Edited 93d ago )

-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.

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