Bethesda blocks resale of a game

[Rachael]

You probably have already heard of this... but if not, Leonard French gives a bit of a breakdown of the law surrounding it.

[Gez]

Tl;DW: you're not allowed to sell as "new" something that isn't actually new.

[Graf Zahl]

Tl;DW: you're not allowed to sell as "new" something that isn't actually new.

... which can get you into trouble elsewhere as well, btw.

[NeuralStunner]

I saw a headline for this a few days ago, but I was willing to give Bethesda the benefit of the doubt. After reading up on it a bit more, I understand their decision, and they did say they have no intention of damaging resellers. That said, I'm not 100% behind the idea of going full legal notice when the guy clearly didn't intend anything malicious, but then I'm not a lawyer, and maybe that's the only option they really have.

I'd like to reiterate that Bethesda is not just being an asshole here. The problem is entirely related to end-user support to begin with, I.E. they'd rather not see players getting shafted.

[Chris]

Tl;DW: you're not allowed to sell as "new" something that isn't actually new.

Except in this case it was "new". And as explained in the video, the first-sale doctrine says Bethesda gave up their rights to that copy of the game once the first sale was completed (i.e. when it was sold to the store). Bethesda doesn't have the right to dictate how a copy can be resold if they no longer own that copy.

"They can't verify it really is new" is just an excuse, it's not their call to make. If a seller lists a product as New when it's not, that's a misrepresentation of goods, it's on the seller's head, not Bethesda's. This is nothing more than a legal firm hired by Bethesda trying to poke at potential loopholes to trounce the first-sale doctrine and dismantle the second-hand market. If Bethesda has a problem with this guy selling his unopened copy as New because it might be tampered with, they should have an equal problem with major store chains that routinely open copies of the games they receive, then repackage them and put them out as new.

[NeuralStunner]

... What reason would they have for doing that when they're one of few publishers left that still gives a shit about customer goodwill?

You know they as much as said they wouldn't be releasing The Elder Scrolls Legends on PS4 because the platform doesn't support crossplay and it would be locked off from other players? (The game in this incident is a PS4 version, by the way.)

[Chris]

... What reason would they have for doing that when they're one of few publishers left that still gives a shit about customer goodwill?

It wasn't Bethesda directly. Bethesda hired a legal firm to handle things like this, and that legal firm sent the letter on Bethesda's behalf. Said legal firm has a record of being unfriendly toward reselling games and doing what they can to smother the second-hand market (the firm's website even has a page that discusses how they do it, and the letter the guy received apparently included some of those talking points taken verbatim from that page). Hines' later comments were an apparent attempt to save face without admitting fault, but ultimately they are responsible for what the firms they hired do.

As far customer good will, I'd say they let that go after Oblivion. I remember in the lead up to Oblivion, they made it a point to talk about the lack of DRM in the game, and that was one of the things that led me to buy it. The very next title, though, Fallout 3 included a version of SecuROM, something which was known to install difficult-to-remove components onto a user's system without the user's knowledge (and removing said components would prevent the games they "protected" from working). It was also tied to Games For Windows Live, which was a headache for many people. The next game they published, Fallout: New Vegas, was then tied to Steam and required online authentication. With Skyrim, it also required Steam, and the game box listed an internet connection being required only for installation. Turned out, the initial release version (1.1, from a day-one patch) could actually be run without online check-ins after installation, but once that was discovered, patch 1.2 was pushed out soon after to plug that apparent hole (that version also included the infamous backwards-flying dragons bug, if you needed any more convincing it was a reactionary move).

Should also be noted that id Software, since being bought out by Bethesda, has become less open. They're not releasing their idTech engine sources anymore, which Carmack was a huge proponent of doing after the licensing for a particular version ran dry. They also stopped releasing Linux builds (which was never officially supported, so they didn't have to worry about support costs, and which they made internally anyway because portability of the engine was important).

Bethesda is also apparently preventing GOG from making their old titles, like the original Doom, Arena, Daggerfall, etc, available for Mac and Linux, despite the fact that the games are emulated under DOSBox where it runs the same regardless. And let's not forget the Scrolls fiasco.

So, yeah, I wouldn't necessarily put "Bethesda" and "customer goodwill" in the same sentence.

[Graf Zahl]

Tl;DW: you're not allowed to sell as "new" something that isn't actually new.

Except in this case it was "new". And as explained in the video, the first-sale doctrine says Bethesda gave up their rights to that copy of the game once the first sale was completed (i.e. when it was sold to the store). Bethesda doesn't have the right to dictate how a copy can be resold if they no longer own that copy.

So far you are right, but let's not forget that in many jurisdictions, selling something "new" implies some sort of warranty, here in Germany the seller is liable for two years that the sold item functions according to specs.

And some private reseller cannot do that. Selling it as "unopened" is different. Because whatever may apply, the game is not "new", because "new" means that it is covered by the two year warranty granted by law. Another thing to consider is, if you are selling "new" items you are implicitly acting as a business where even more legal red tape applies, which you can also get in trouble over.
In short: If you try selling something "new" here and do not follow exact legal procedures you will become the target of some lawyers who specialize in targeting unlawful businesses.

The gist of it: As a private person, never sell any item as "new". The trouble you may get into over it isn't worth it.

[Chris]

So far you are right, but let's not forget that in many jurisdictions, selling something "new" implies some sort of warranty, here in Germany the seller is liable for two years that the sold item functions according to specs.

I'm not sure if it's the same in the U.S. or not, but still, that seems it would be on the seller to provide such a warranty rather than Bethesda. If I buy a game from a store, take it home, open it up, and find something wrong (broken/missing disc, wrong game, etc), I'd take it back to the store because that's who it was purchased from. It's not Bethesda's responsibility to ensure the game I got from the store wasn't tampered with or that it was sold with proper warranties.

In either case, a sale would be between the seller and buyer. In my not-a-lawyer opinion, it's not within Bethesda's rights to go after a seller on behalf of a non-existent buyer because something looks off to them, like some kind of vigilante. The whole "because it was marked New and didn't have the original warranty" is clearly an excuse they're pushing when you consider the legal firm involved says this on their website to potential clients on a page titled "Three-Step Approach to Stopping Unauthorized Online Sales on eBay":

Under what is known as the First Sale Doctrine, once a trademark owner (“the company”) sells a product, the buyer ordinarily can resell the product without infringing the owner’s mark. However, the First Sale Doctrine does not apply when a reseller sells a trademarked good that is materially different from the company’s genuine goods.

Case law has established a few important principles relating to material differences. This includes that: 1) the threshold of materiality is considered “low”; 2) only a single material difference is necessary to give rise to a trademark infringement claim; and 3) material differences do not have to be “physical” differences.

Note the lack of any mention of the word "new", while pushing forth that only minor differences are needed to remove protections offered by the first sale doctrine and bring a claim against an attempted online sale. Note also that's about unauthorized sales, where Bethesda's response says they "do not allow non-authorized resellers to ..." (i.e. they consider him an unauthorized reseller, making that an unauthorized sale regardless of how it's represented). Further, the actual letter sent to the guy mentioned that he wasn't protected by the first sale doctrine because the lack of original warranty made it "materially different from genuine products," mirroring what their website says in how they skip over protections provided by the first sale doctrine.

Bethesda's response,

We do not allow non-authorized resellers to represent what they sell as “new” because we can’t verify that the game hasn’t been opened and repackaged. This is how we help protect buyers from fraud and ensure our customers always receive authentic new product, with all enclosed materials and warranty intact.

In this case, if the game had been listed as “Pre-Owned,” this would not have been an issue.

kind of rings hollow when every indication is this would've happened anyway since the change in listing wouldn't have changed the above facts. They also never asked him to simply change the listing to Pre-Owned, nor did they merely ask him to take down any listings simply marked as New (and feel free to put them back up, but please mark them "Pre-Owned" for the protection of our customers!); he was instead told flat out in the original letter:

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

again, not only lacking any mention of "new" products, but also talking to him as if he'd been stealing directly from Bethesda and wanted to know who his accomplices were.

[Graf Zahl]

Let's not talk about the lawyers that were involved. Those clearly are shitheads of most epic proportions. But that's the problem in general here: People with an agenda who try to profit from a mistake someone makes. You always have to factor those in when doing any kind of business.

Regarding Bethesda, I do not know the entire story. Maybe "authorized reseller" also means that Bethesda is covering for some responsibilities of the reseller. If that is the case, an unauthorized reseller can indeed not cover what is guaranteed by buying a "new" item. But don't take my word on it, I'm not a lawyer. All I know is that as a private reseller you have to be careful. The law isn't always what a layman might expect. Which isn't really that surprising because most commerce law predates eBay and Amazon Marketplace.

[Enjay]

I'm going to guess that an authorised reseller has the same kind of deal with Bethesda that the shop/store I worked in many, many years ago had with its suppliers (and which I assume is standard practice): A customer buys from the shop and so if the goods are faulty, they take them back to the shop for exchange/refund. The shop now has a faulty copy of the goods but because of their deal with the supplier, they can then return them to the supplier and get their refund.

[Apeirogon]

So, company with multi-million dollars budget hunts for a single man, which create post like "Hi guys, I have new, unpacked copy of game_name. I want to sell it for number dollars. Call me if you interested, my phone number +890 344 278 71 23"?!

This looks more like black promotional, I think, before release of doom 5 than actual foolishness.

[Graf Zahl]

At least get the facts right. He offered a "new" copy of the game on Amazon Marketplace. The operative word being "new".

[Apeirogon]

Maybe he means "new" as "last/one of the last title of bethesda" or something like this.

[wildweasel]

Maybe he means "new" as "last/one of the last title of bethesda" or something like this.

The fact that lawyers are involved indicates it's probably not something that trivial, or else someone would be raising an even bigger fuss about it.