Bethesda blocks resale of a game

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Re: Bethesda blocks resale of a game

Postby Chris » Thu Aug 16, 2018 8:49 pm

zrrion the insect wrote:New does mean from an authorized reseller though.

Not in the US, at least. Leonard French is a copyright lawyer, fairly well-versed in copyright and contract law, and would know something that basic if it was true.
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Re: Bethesda blocks resale of a game

Postby Graf Zahl » Fri Aug 17, 2018 1:14 am

Chris wrote:
zrrion the insect wrote:So he's selling something that isn't new as new.

Except it is new.


Layman's "new" is not the same as legal "new". You can discuss this until eternity but this is the most common pitfall private resellers on platforms like eBay or Amazon Marketplace run afoul of. Selling something "new" implies a few things a private reseller cannot fulfill.

If you sell it as "unused", you'd be fine, but since you already bought it, it is no longer "new".

Have you noticed that in all this discussion I put 'new' in quotes? That's because I wanted to emphasize the legal meaning of the word. Imagine what happens if you buy a car, but then decide, when it is delivered, that you do not want it and resell it. Technically it's in the same state as a genuinely new car, but if you tried to sell it as a "new car", would you really think you get away with it? It's basically the same here. The only entity allowed to sell an item as "new" is the manufacturer (or in this case as its substitute an authorized reseller.)
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Re: Bethesda blocks resale of a game

Postby Chris » Fri Aug 17, 2018 2:49 am

Graf Zahl wrote:Layman's "new" is not the same as legal "new". You can discuss this until eternity but this is the most common pitfall private resellers on platforms like eBay or Amazon Marketplace run afoul of. Selling something "new" implies a few things a private reseller cannot fulfill.

I don't know how it may differ in Germany compared to the U.S., but given that we have a lawyer saying that there was nothing wrong with him (a private citizen) listing his personal copy as new due to it being unopened from its original packaging, and was even encouraging other people to do it, it's apparently not quite like that here. If a private reseller can't fulfill the legal requirements of something listed as New, why would Amazon allow it in the first place? Amazon and eBay disallow selling digital goods by private resellers because all the issues surrounding such sales, but this is hardly the first and only thing listed as New on online marketplaces by private resellers, and there's never been a hint of a general issue before. And encouraging a mass of other people to do it would be quite problematic if it was, I wouldn't expect Leonard to jeopardize his job like that.
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Re: Bethesda blocks resale of a game

Postby Graf Zahl » Fri Aug 17, 2018 3:56 am

Just because these items get listed does not mean they are legally proper. Before eBay and Amazon take action someone has to report the listed item.
Nevertheless, if I buy something "new", I expect it to come right from the manufacturer with the retailer as an intermediary who manages the transaction. And with my car analogy, a car that had already been shipped to another owner is no longer "new", because in this case the previous owner is documented in the papers that belong to the car. I'd expect the same logic to apply to any physical goods.

On the other hand I also know that article descriptions from private sellers are always to be taken with a grain of salt because many do not know the fine print that comes with this business. Most get away with it but if someone gets caught up in the legal trappings, the outcry is usually huge, but that is mainly because most people do not really know what the law has to say about things like wording or warranties that come with certain wordings.

Here's something entirely different, regarding computer server hosting, but it should highlight why wording is so important.
I once read about one service provider who promised "99.99% availability" and got fucked over that. Why 99.99%? Because it sounded better than 99%. So where's the problem? If you promise 99% you can allow 1% of downtime which normally covers your ass. But if you promise 99.99% you allow for 0.001% of downtime, that's less than 9 hours per year. But hey, you promised it in your contract, so you have to cover for the eventuality that the server may be down occasionally. And 9 hours can be quickly hit if the server has to be taken offline for recurring maintenance alone.

In the same vein, if you promise to sell something "new". It better be legally "new" with all the strings attached, and not just physically "new". And it's solely your responsibility to read up on the laws that apply here.

This guy can be lucky to live in the US, because here in Germany he'd have to cover the lawyers fees for the written notice as well.

All that said, I am convinced that in this case it was mostly used as a pretext to create a clear-cut FUD opportunity and not done out of some genuine customer concern. That's the main trick big corporations tend to use to push their agenda: Attack those who already stand on shaky legal grounds but use that to imply something broader than the actual issue at hand. If you attack someone without legal justification there's always the risk that your opponent fights back and you lose.
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Re: Bethesda blocks resale of a game

Postby dpJudas » Fri Aug 17, 2018 4:27 am

Danish law, and I'm fairly sure this is based on a general EU law directive, has very clear distinctions between commercial and private sale. If you sell in large volumes you can no longer be considered a private seller, you have to follow different laws. You are not allowed to pretend you're a commercial entity with the warranty guarantees intact - so the exact wording can be important.

However, those commercial laws are very clear about it being the store and not the manufacturer that provides the warranty. All this "authorized" bullshit are companies trying to control prices in a way that is actually very anti-competitive. It is funny Graf mentions the car industry, because they are famous for constantly trying to make it sound like you have to use their authorized repair shops for maintenance and there have been several court fights over that over the years and the car industry has lost each and every time. So please don't help those scumbags by trying to imply authorized means anything. To my knowledge, there are no EU or US laws that support that.
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Re: Bethesda blocks resale of a game

Postby Graf Zahl » Fri Aug 17, 2018 5:20 am

dpJudas wrote:Danish law, and I'm fairly sure this is based on a general EU law directive, has very clear distinctions between commercial and private sale. If you sell in large volumes you can no longer be considered a private seller, you have to follow different laws. You are not allowed to pretend you're a commercial entity with the warranty guarantees intact - so the exact wording can be important.



That is the main problem indeed. And if the wording makes those scumbags construe your offer as "commercial" you give them a wide open opportunity to attack because private sellers can not and normally will not cover for warranrties that are part of a commercial sale.



dpJudas wrote: It is funny Graf mentions the car industry, because they are famous for constantly trying to make it sound like you have to use their authorized repair shops for maintenance and there have been several court fights over that over the years and the car industry has lost each and every time.


... which is completely irrelevant here. What I was trying to say is, once you purchased and registered a car it gets a permanent entry in its papers listing you as its owner for a given time period. And that alone makes the car not "new" anymore, even if you do not drive it for a single kilometer.

Off topic - but where does that put Apple? They are the poster child of stifling competition at every corner they can and regularly get away with it.



dpJudas wrote:However, those commercial laws are very clear about it being the store and not the manufacturer that provides the warranty. All this "authorized" bullshit are companies trying to control prices in a way that is actually very anti-competitive.
---
So please don't help those scumbags by trying to imply authorized means anything. To my knowledge, there are no EU or US laws that support that.



Also correct. However...

In order to sell something "new" a reseller has to fulfill a few legal obligations, which "authorizes" them to sell "new" stuff.
See, how it's all just a matter of interpretation? Blame the lawyers for intentionally twisting words so that the real meaning and what people are supposed to read into it are totally different!
Sometimes, to understand this legal hogwash you have to somehow replicate their twisted way of thinking.
It surely is FUD at its finest, but that's a likely response you get if you directly ask those people what "authorized" means in this context, considering that there can be no explicit authorization between manufacturer and retailer.

You can trust me, I know perfectly what's up here. But as long as people are only ranting about corporate nastiness without ever analyzing their methods or investigating which loopholes they exploit to do it, there's no chance to combat it. You'll just run head-first into the next trap they put up, giving them another chance to demonstrate a "crackdown" on "illegal" sales.
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Re: Bethesda blocks resale of a game

Postby Enjay » Fri Aug 17, 2018 5:46 am

Graf Zahl wrote:giving them another chance to demonstrate a "crackdown" on "illegal" sales.

That's one of the things that get me about this kind of situation: because Bethesda speaks with the authority of power and money, all the have to do is cry "illegal" and immediately aspersions are cast on the reputation of the seller and there is an impression of taint on him. He must be dodgy because power says he's illegal. There also seems to be associated with this a general get feeling of "the big guys must be right" from most people. It works that way when politicians make bold statements too. As long as they stick to their line, it's official and many people just seem to accept it. :shrug:
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Re: Bethesda blocks resale of a game

Postby dpJudas » Fri Aug 17, 2018 5:50 am

Graf Zahl wrote:Off topic - but where does that put Apple? They are the poster child of stifling competition at every corner they can and regularly get away with it.

Don't get me started on Apple. Their Apple Care shit where they pretend we don't have the two years effective warranty by law in the EU (1 year where they have to replace the goods completely, plus 1 year where they are allowed to repair it).. Amazing they haven't ended up in court about their repair policy yet. No company cries more than Apple when they have to fix what they sold.

In order to sell something "new" a reseller has to fulfill a few legal obligations, which "authorizes" them to sell "new" stuff.
See, how it's all just a matter of interpretation? Blame the lawyers for intentionally twisting words so that the real meaning and what people are supposed to read into it are totally different!
Sometimes, to understand this legal hogwash you have to somehow replicate their twisted way of thinking.

Totally agree with you on that. My comment about the authorization was mainly targeted against zrrion that used the "authorized reseller" phrase - I should have been more clear about that. Maybe he meant it as any commercial reseller, but I understood it as he meant the reseller needed authorization from Bethesda.
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Re: Bethesda blocks resale of a game

Postby Graf Zahl » Fri Aug 17, 2018 6:02 am

dpJudas wrote:No company cries more than Apple when they have to fix what they sold.



Well, don't we all know that Apple makes the best products in the world? How can they be defective unless the user was stupid enough to break them...? :twisted:
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Re: Bethesda blocks resale of a game

Postby RexS » Fri Aug 17, 2018 9:44 am

Enjay wrote:
Graf Zahl wrote:giving them another chance to demonstrate a "crackdown" on "illegal" sales.

That's one of the things that get me about this kind of situation: because Bethesda speaks with the authority of power and money, all the have to do is cry "illegal" and immediately aspersions are cast on the reputation of the seller and there is an impression of taint on him. He must be dodgy because power says he's illegal. There also seems to be associated with this a general get feeling of "the big guys must be right" from most people. It works that way when politicians make bold statements too. As long as they stick to their line, it's official and many people just seem to accept it. :shrug:



Really? Maybe it's because I grew up, and have always been, a rebel, but in my tunnel vision I just assume every single corporation is evil (the bigger they are, the closer they are to SkyNet or Shinra) and that every politician EVER is a lying P.O.S. to varying degrees, and I thought everybody thought this way.
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Re: Bethesda blocks resale of a game

Postby .ex.inferis. » Fri Aug 17, 2018 12:17 pm

Graf Zahl wrote:
dpJudas wrote:No company cries more than Apple when they have to fix what they sold.



Well, don't we all know that Apple makes the best products in the world? How can they be defective unless the user was stupid enough to break them...? :twisted:


What is the icing on the proverbial cake about all this is how they even remove something as basic as a freakin' headphone jack. Was it costs or something? I don't even remember. How on earth does this even make sense to do?
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Re: Bethesda blocks resale of a game

Postby Graf Zahl » Fri Aug 17, 2018 12:29 pm

That's Apple. They sell that as "making progress". That said, it's perfectly fine to remove features nobody or only a small minority still has a need for, but with Apple it's all about being able to sell new accessories to these users when the old ones are made obsolete.
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Re: Bethesda blocks resale of a game

Postby NeuralStunner » Fri Aug 17, 2018 12:56 pm

Enjay wrote:That's one of the things that get me about this kind of situation: because Bethesda speaks with the authority of power and money, all the have to do is cry "illegal" and immediately aspersions are cast on the reputation of the seller and there is an impression of taint on him. He must be dodgy because power says he's illegal.
Who's saying this? Even official statements were that he just needed to list as pre-owned and everything would be fine. I'm seeing more reaction going in the complete opposite extreme, "Bethesda is trying to kill the secondhand game market" etc. etc. Again: Official statement says there's no problem with secondhand sales as long as they're to the letter - and yeah that sucks, I'm not denying that. But why does there have to be a "bad guy" in this situation at all? * :?

Something else that occurs to me: As much as "everyone" hates DLC, it could actually be beneficial to the used game market... If someone buys a used copy of the base game, the company misses that sale themselves, but may still get DLC purchases from the new player (who might be more willing to make them after getting a deal on the game itself). Especially if the game is already out of print anyway.

The main issue seems to be that there was no transparency on these laws to begin with. How many people had heard the term "first sale doctrine" before now? I know I hadn't. People need to know they can't do that before they hear "STOP RIGHT THERE CRIMINAL SCUM!"


* Other than probably the legal firm, which I won't deny went overboard. Supporting their decision was a disappointing move, but I don't think either "side" intended any malice.
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Re: Bethesda blocks resale of a game

Postby Chris » Fri Aug 17, 2018 5:49 pm

NeuralStunner wrote:Again: Official statement says there's no problem with secondhand sales as long as they're to the letter - and yeah that sucks, I'm not denying that. But why does there have to be a "bad guy" in this situation at all? * :?

Because it was clear overreach on the side of Bethesda and their legal firm. Looking through the available information, there's little indication that changing the listing from "New" is all the letter cared about. It was only after the story came to light that a Bethesda spokesperson spoke up, doubling-down on it by saying the seller was wrong to list it as new. If that was truly Bethesda's intention, why not tell him to "Please change the "New" listing to "Pre-Owned" or "Used"" or "Please don't list it as "New" for the protection of our customers"? Instead, he was told the first sale doctrine doesn't apply because of some potential technicality, to take down all listings of Bethesda products (not just new), and to tell them where he got the items from (as if it was some sort of conspiracy), or they would sue. Bethesda never said they made a mistake with those demands, they never claimed any fault, just said it was for the protection of their customers because they couldn't verify it was really New (yet they also can't verify a listing for Fallout 4 is really Fallout 4, so why not protect your customers that may get duped by that listing?).

Something else that occurs to me: As much as "everyone" hates DLC, it could actually be beneficial to the used game market... If someone buys a used copy of the base game, the company misses that sale themselves, but may still get DLC purchases from the new player (who might be more willing to make them after getting a deal on the game itself). Especially if the game is already out of print anyway.

That's kind of part of the problem. If I buy DLC for a game, shouldn't I also be able to resell the DLC I bought along with the game? A copy of a game without its DLC is going to be much less attractive to buy second-hand if the would-be buyer has to go and buy all the DLC separately anyway, especially if buying the DLC separately will be more expensive than a game+DLC bundle from the publisher. Pushing games and add-ons to digital-only is yet another attempt on the used game market.

The main issue seems to be that there was no transparency on these laws to begin with. How many people had heard the term "first sale doctrine" before now?

I have, and apparently the reseller did too since he brought it up. It's a fairly common thing to run into when you look into copyrights in the US. This is a more general issue though that the laws are so complex that even if you have a basic understanding of what's involved, you could be completely wrong on how courts and lawyers see it. I mean, considering Vorys tries to make a trademark claim for reselling of goods, who would've thought to look at trademark law on top of copyright law? Not to mention you then have to look through case law to find any information on things the laws as-written may have missed or not been clear on (or where previous attempts at loopholes were made). It would be impossible for anyone to do anything if they had to go through everything the law says on some subject. It's telling that people who make it their life-long job to pursue and study this stuff, still make mistakes when interpreting law. But we're still responsible when unknowingly running afoul of it, even when no measurable harm is done.
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Re: Bethesda blocks resale of a game

Postby JadedLexi » Fri Aug 17, 2018 11:32 pm

This thread just reads like people are making a bigger issue of something than it is...
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