Using reasoning that effectively dismantles the first sale doctrine, opening up all unauthorized/second-hand sales to potential lawsuits, should be a pretty big deal. It's quite disconcerting that there are people trying to defend Bethesda's actions (though I guess it shouldn't surprise me). This post will be the last I have to say on this issue otherwise I'll be repeating myself, so you don't have to worry about more walls of text from me.JadedLexi wrote:This thread just reads like people are making a bigger issue of something than it is...
Here's the thing. Let's give Bethesda the benefit of the doubt. Let's say they're being completely honest and truly harbor no ill-will at all toward the second-hand market. They say they're doing this to protect their customers because they can't verify a listing for a New copy of The Evil Within 2 is in fact New. Right? Whereas currently such a dispute for a product not being sold as advertised is between the buyer and seller (and probably the storefront; and it should be known Amazon and eBay already do a lot to protect buyers from disputed or fraudulent sales, without the help of publishers), Bethesda is claiming they can interject themselves on a non-existent buyer's behalf to protect potential buyers. Even if Bethesda's motives are totally pure and completely altruistic, one must ask if we want to allow any and all publishers that kind of power. Maybe next time someone tries to pull that reasoning, it'll be Ubisoft or Activision-Blizzard that's interjecting themselves. You only need to make a few minor tweaks to run with it ('we can't verify new game X is new, vs we can't verify pre-owned game X is game X, or we can't verify used game X is still usable, we're just looking out for our customers and ensuring they get what they pay for!).
Similarly they're saying they can do this because the first sale doctrine doesn't apply, since the lack of original warranty makes it "materially different", right? And I'm even giving Vorys the benefit of the doubt that what they say about overcoming the first sale doctrine with a trademark suit would hold up. The problem with that is, the first sale doctrine says nothing about a product being resold as new or used. So if it's found to be materially different, the first sale doctrine doesn't apply and Bethesda retains the rights to that copy. Think about that. No longer having the original warranty would make it materially different, thereby removing first-sale protections and reverting ownership back to the publisher, without regard to it being listed as New, Pre-Owned, or Used. If you try to resell a copy without its warranty, the publisher would have the full right to control what happens with that copy. And again, even if Bethesda's intentions are pure and altruistic here and they won't ever do anything nefarious, allowing one publisher must allow them all. Perhaps next time it'll be EA or Nintendo claiming no first sale protections because there's no warranty.
Ever heard the saying "the road to hell is paved with good intentions"? Giving power to someone who'll wield it fair and justly to help those in need is all well and good, but if in giving that power, it can be equally wielded by less scrupulous people for less-than-kind purposes? You've got a problem. I don't trust Bethesda on this, but even if I'm wrong and their intentions are noble and pure, letting their reasoning stand would send a chilling effect through the second-hand market.
