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Bethesda's lawyers go after someone for selling a sealed game marked as "new."

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The game in question is a sealed copy of "The Evil Within 2." Here is the article:

 

https://www.polygon.com/2018/8/11/17661254/bethesda-sell-used-games-amazon-block

 

I can summarize this in 2 ways:

 

NON BETHESDA PERSPECTIVE: The company's lawyers were bored, so they went after an individual for selling his sealed copy as * new. *

 

BETHESDA'S PERSPECTIVE: The guy is an unauthorized reseller as he has no sort of warranty for the game. Anyone that buys the * new * copy would get screwed if they try to return it. As the guy is not an official reseller, it's unlawful for him to resell the game on Amazon. The lack of warranty would violate the "first sale doctrine," thus making it illegal. All Bethesda cared about is the word * new * rather than * sealed. * Claiming it's * new * makes it false advertising.

 

Bethesda makes a good argument and if the succeed, this could prevent the word * new * with resellers that offer no warranty.

 

This is the Internet... pick a side and discuss why the other side is wrong.

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Don't the games's EULA always states something like "you cannot sell the game when you buy it unless you have the publisher's approval"? He obviously violated it.

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I'd go for complaining about selling something "new".

 

But the rest is clearly corporate bullshit at its finest and a blatant attempt at shutting down the second hand market. Here's the paragraph in the article where all falls down:

 



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.

 

Blame the broken American legal system for making something like this possible. In nearly all civilized countries it is perfectly legal to sell used copyrighted goods, even when explicitly denying all warranty.

 

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41 minutes ago, Catpho said:

Don't the games's EULA always states something like "you cannot sell the game when you buy it unless you have the publisher's approval"? He obviously violated it.

 

Any such clause would be illegal because it'd violate copyright laws. See the above quote about how they try to weasel around the law.

Well, too bad that the guy made it public. And now watch the shitstorm unfold... :D

 

 

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Posted (edited)
1 hour ago, Jerry.C said:

 

Any such clause would be illegal because it'd violate copyright laws. See the above quote about how they try to weasel around the law.

Well, too bad that the guy made it public. And now watch the shitstorm unfold... :D

 

 

If this is true than all EULAs are always illegal. But I've seen them being used in most proprietary games I've saw up to this point, so how does that cause a shitstorm right now? 

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EULAs are generally legal but they may not restrict rights given to you by law. And being allowed to resell used goods is one of these rights.

Even 15-20 years ago many games have a "may not be resold" clause in their license agreements but they simply never were enforceable, if the law said otherwise.

 

What is different is trying to sell something as new and not giving any warranty for it, that could get you into trouble in most parts of the world.

 

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Quote

Some copyright owners use EULAs in an effort to circumvent limitations the applicable copyright law places on their copyrights (such as the limitations in sections 107–122 of the United States Copyright Act), or to expand the scope of control over the work into areas for which copyright protection is denied by law (such as attempting to charge for, regulate or prevent private performances of a work beyond a certain number of performances or beyond a certain period of time). Such EULAs are, in essence, efforts to gain control, by contract, over matters upon which copyright law precludes control.  This kind of EULAs concurs in aim with DRM and both may be used as alternate methods for widening control over software.

https://en.wikipedia.org/wiki/End-user_license_agreement

 

Quote

The first-sale doctrine creates a basic exception to the copyright holder's distribution right. Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. Thus, one who buys a copy of a book is entitled to resell it, rent it, give it away, or destroy it. However, the owner of the copy of the book will not be able to make new copies of the book because the first-sale doctrine does not limit copyright owner's reproduction right.

https://en.wikipedia.org/wiki/First-sale_doctrine

 

1 hour ago, Jerry.C said:
2 hours ago, Catpho said:

Don't the games's EULA always states something like "you cannot sell the game when you buy it unless you have the publisher's approval"? He obviously violated it.

 

Any such clause would be illegal because it'd violate copyright laws. See the above quote about how they try to weasel around the law.

Well, too bad that the guy made it public. And now watch the shitstorm unfold... :D

There's a difference between "sale" and "license" in the context of copyright. Check the link below.

https://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

 

Bethesda does make a solid point that this would be false advertising, because it is, because it's not new. This guy is allowed to resell this game, but he can't claim it as new, which is something everyone knows.

In short, who's side am I on?

Bethesda's, surprisingly, because they make the strongest points. There is a difference between new and like-new condition, so if this guy is in fact marketing his game as new, then Bethesda (as well as anyone) has the right to dispute his claim, whereas if he said it was like-new, they couldn't do anything about it no matter how much they try.

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Posted (edited)
12 minutes ago, Aquila Chrysaetos said:

There's a difference between "sale" and "license" in the context of copyright. Check the link below.

 

Correct. But if you sell a physical item, it's a "sale". At least in any sane jurisdiction.

In this contect a book, a music CD and a game DVD for a console are all the same, no matter what interested parties who want to restrict the law to their advantage try to tell you.

 

I guess it is different for modern PC games where the medium is merely some product key that allows you to access some service to download and play a game, but to my knowledge there hasn't been any court ruling about that yet. But with the game industry I think there is no low point they can reach where they stop abusing their customers. Their core group of users just doesn't seem to care.

 

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What, so now we can't even sell unopened copies of games anymore? What the fuck.

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That's what the gaming industry wants you to believe, at least. Never forget it's in their best interest if they can shut down the second hand market on the consoles, like they already successfully did for PC games.

 

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So, in essence, if he'd sold it as 'sealed' or 'like new', he'd be fine? Seems like he done goofed, assuming I understand this. I get that a lot of this is the result of an attempt to fuck secondhand sellers but if it's that easy to get around, I don't see it as being too horrible, really.

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Posted (edited)
On 8/11/2018 at 3:22 PM, Doomkid said:

So, in essence, if he'd sold it as 'sealed' or 'like new', he'd be fine? Seems like he done goofed, assuming I understand this. I get that a lot of this is the result of an attempt to fuck secondhand sellers but if it's that easy to get around, I don't see it as being too horrible, really.

Yeah. That's what I got out of the original article. New comes with a warranty and has to be authorized by the publisher.

 

It's still a resold / previously owned copy and not new.

 

There was another article quoting someone from Bethesda about how the game could have been unsealed... had its materials taken from it, then resealed. I know for a fact from buying sealed copies at flea markets that games had Blockbuster stickers on them... but they were shrink wrapped and sealed. It was quite embarrassing giving a new gift as an extra birthday present for someone only to have it say Blockbuster on the inside. Our minds were blown.

 

https://www.pcgamer.com/pete-hines-explains-why-bethesda-blocked-resale-of-a-sealed-copy-of-the-enemy-within-2/

 

Also according to Bethesda it was only stated to be * unlawful * to sell it as new rather than * we're suing you now. *

 

Heck the last * new * copy of a game I bought from GameStop was a PC version of Oblivion. To which it was open. New copy already open. Yep. I called bullshit on that, he still sold it to me. After that experience, I never bought a game from GameStop again.

 

Oh yeah... then there was that one PS4 someone bought as a Christmas gift for his son that turned out to have a wooden cutout of a penis in the box instead of PS4. That was marked as * new * on store shelves rather than * refurbished * as it had been returned to the store:

 

https://www.wfla.com/national/boy-finds-block-of-wood-inside-ps4-box/1051838603

 

My local Walmart wouldn't let that slide for a $50 Zune I returned in favor of a $100 iPod. Wow did that dude check everything, even serial numbers on the box and product along with all its contents. He also looked about 60+ so while he didn't look like he knew what a MP3 player was... he sure knew what to check.

Edited by geo

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Bethesda is being an ass here. The only issue here I see is in the legal meaning of "new" vs. the common, English meaning. It's not a stretch to call a car "new" that you've driven for a month, kept waxed and completely clean. I would refer to that car as "new", as would many others.

 

As a side note, there's no reason Bethesda couldn't honor a warranty claim on this item either, if they wanted to. What a dumb move, PR-wise. Funny thing is, warranty does not apply to "new" items - it applies to "damaged" items. What they really mean is "items where you were the only owner", not "new". So, they use the "new" argument in one context, and then switch it up for the "single-owner" argument and hope no one notices.

 

The item was "new" as far as I'm concerned. Who's to say that the seller would not honor a refund if anything was wrong with it?

 

I suppose all of that is arguable. But, if I was calling the shots at Bethesda, I think I would have more important things to attend to, and if not, I would find one.

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