Overnight Polygon posted a report about Bethesda threatening an individual with legal action for selling a sealed copy of The Evil Within 2 on Amazon Marketplace.
The legal firm acting on Bethesda’s behalf – a company called Vorys – took issue with an individual’s labelling of The Evil Within 2 as “new”, insisting the individual, a man called Ryan Hupp, was not an authorised reseller and therefore his selling a “new” copy was unlawful.
It seemed like an overreaction by Bethesda, so I asked Pete Hines, senior vice president of marketing and communications, about the issue at QuakeCon 2018 today.
“He’s not trying to sell a secondhand game, he’s trying to sell a new game,” he told me. “He was listing the product as if it was new. All we’re saying is if it’s a previously owned product, you have to sell it as a previously owned product – you cannot represent it’s new because we have no way to verify what you’re selling actually is new.
“You could have opened it up, played it for five hours, taken whatever inserts or stuff was in there, put it back in shrink wrap and said, ‘Hey this is new.’ It’s not new – you owned it, you bought it, so just list it as a used title. That’s it, that’s the end of the argument.
“We’re not trying to stop anybody from selling used games,” he clarified. “People sell used games all the time – we understand that, we’re not trying to stop that.
“He, specifically, was trying to list it as a new product as if he was GameStop or Best Buy… He’s not a company, he’s not a distributor… and we don’t want our customers buying stuff from a vendor like Amazon where they think they’re buying a new product and suddenly finding out they got a disc that’s been played, somebody kicked across the floor and scratched and ‘oh they took out the insert that had the special items I was supposed to get for buying this’.”
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Hupp, from Philadelphia, told Polygon he brought The Evil Within 2 but never unwrapped it. The game’s resale is governed by the First Sale Doctrine in the US. This lets people resell a video game, but it must not be significantly altered from its original form. According to Vorys, Hupp did not resell the game in its original form because it lacked a warranty you’d get if you bought the game from an authorised reseller.
The news has attracted much negative reaction on social media, with Bethesda, via notoriously-litigious parent company ZeniMax, accused to mirroring Microsoft’s disastrous attempt to clamp down on second-hand sales with the Xbox One in 2013.
Hines said he was “sick of seeing stuff swirling around out there” and wanted to set the record straight.
“We are not trying to stop anybody selling a used game, we would never try and stop anybody from selling a used game,” he reiterated. “We do have an issue with people representing they are selling a new copy of the game when we have no ability to tell it is actually new, so we aren’t going to allow somebody to say ‘this is new’.
“If you want to sell your copy of the game, it’s ‘pre-owned’. You can’t say that it’s new because I have no way to verify that, and ultimately that person is our customer we have to deal with and if there’s stuff missing or things that have happened we’re the ones that are going to have to make it right.
“You want to sell it as new, go to your buddy and say, ‘Hey I haven’t opened this copy, it’s new, give me $60 for it.’ If he buys it from you, knock yourself out, but don’t go on Amazon and represent yourself next to a retailer who we know we shipped sealed product to and they’re going to sell you an actual new copy of the game.”
It seems unlikely Bethesda’s legal firm will send letters to all who are reselling its games as new on online marketplaces such as eBay. What seems more likely is this legal threat against Hupp is designed to act as a deterrent. But it appears UK-based resellers are yet to be deterred. Indeed, there are a raft of listings for The Evil Within 2 described as brand new and sealed on eBay.
This article is based on a press trip to QuakeCon. Bethesda covered travel and accommodation.