Wherein Bethesda acts like a$$holes

[Daehawk]

https://www.bluesnews.com/s/192546/beth ... -game-sale

Bethesda Blocks Used Game Sale

Polygon reports that Bethesda Softworks has intervened to prevent a seller on Amazon's Marketplace from selling a used copy of The Evil Within 2 which had never been opened. It is noted that this has disturbing implications, and they dig into the story to highlight aspects that are odd or troubling:

Hupp complied with the demand, but in a reply to Vorys, he pointed out that the resale of used copyrighted goods — such as books, video games, DVDs — is protected in U.S. law through the First Sale Doctrine. This allows consumers to sell a used game, so long as it’s not significantly altered from its original form.

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. In theory, this argument could be used against anyone who sells a used game without specific permission from Bethesda. If taken to its logical conclusion, Bethesda’s legal move could spell the end of users selling used games — or even brand-new unopened games — via online sites like eBay and Amazon Marketplace.

“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,” the letter reads. It goes on to state that a lawsuit would seek “disgorgement of profits, compensatory damages, attorneys’ fees and investigative and other costs.”

It’s also not clear why Hupp’s specific listing was targeted. Amazon still list dozens of used and new copies of The Evil Within 2 from Marketplace sellers.

When contacted by Polygon, Bethesda declined to comment on this story. We also asked for clarification on how the company’s warranties work on used goods sold through official channels. GameStop, for example, offers a blanket 30-day warranty on used games that do not work, so long as the game has not been broken by the buyers. Bethesda did not reply.

Full story at Polygon

[Fitzy]

I saw this. It seems weird. I thought reselling was pretty much settled and not worried about since everything is moving towards digital.

[Blackhawk]

Bethesda's issue is apparently that it was being described as 'new' when it didn't come from them or an authorized distributor. Their approach is to sound scary and hope the little guy doesn't know (or stand up for) his rights.

Their justifications have been:

A) The warranty is expired, so it is materially different.
B) You can't know for sure that it wasn't resealed, so the seller can't prove its new.
C) It's had an owner, so calling it new is false advertising.

Every one of which is so ham-handed as to be absurd. By their logic, no product on the market that isn't metered or consumable can ever be considered 'new.'

[Max Peck]

I saw this. It seems weird. I thought reselling was pretty much settled and not worried about since everything is moving towards digital.

According to the article, they aren't taking issue with reselling the game, but rather with it being presented as "new" rather than "pre-owned".

[Daehawk]

What if you call it new old stock?

[Blackhawk]

There is no need to call it anything. "Pre-owned" is just an advertising buzzword for 'used.' It isn't used. When it comes to media, 'new' means 'not used.' I've seen board games, video games, DVDs, and books that have never been unsealed sold as new because they are new.

[Max Peck]

Well, obviously, the Zenimax Legal Beagle Team® is defining "new" as "directly purchased through an authorized retailer where we get a cut of the transaction." I doubt that they actually care about one-off sales like this case (assuming that we take the Amazon Marketplace seller at his word -- I never trust Amazon Marketplace sellers...) and that the policy is in place to go after gray market retailers/key-resellers.

[Lorini]

The problem is that they are correct, and what they are really saying is that they get stuck with the angry gamer when the game has been re-shrinkwrapped and sold as new. So you won't be able to sell the game as new anymore, at least not their games.

I don't have an issue with that as there is so much scamming on Ebay.

[Blackhawk]

So you won't be able to sell the game as new anymore, at least not their games.

Not true. They didn't establish precedent or set policy for retailers. All they did was threaten somebody with some legalese that may or may not actually be true (they don't have to be correct with their legalese - that's what judges are for - but it sure is good at intimidating people.)

Bethesda does not get to define the law however they see fit just because it benefits them.

[Blackhawk]

Also, while I get that people use this method to scam others, there are some pretty nasty complications involved in companies getting away with what Bethesda's trying. If Bethesda is determined to be correct, they'd shut down a lot of scammers. The collateral damage, however, could limit the business of used book stores, overstock stores, even places like Goodwill.

The laws in question are good ones meant to be used for good things. That some people abuse them doesn't mean that we should allow companies to use it as an excuse to shut down the legitimate uses of the rights in question.

[Daehawk]

Used to I would not believe there were people stupid enough to call the original company for a used or still shrink wrapped old game. Nothing surprises me these days though.

[Punisher]

So in this case, I would think that Gamestop would have the same issue since they open every one of their games before selling them.

[Lorini]

So you won't be able to sell the game as new anymore, at least not their games.

Not true. They didn't establish precedent or set policy for retailers. All they did was threaten somebody with some legalese that may or may not actually be true (they don't have to be correct with their legalese - that's what judges are for - but it sure is good at intimidating people.)

Bethesda does not get to define the law however they see fit just because it benefits them.

Well I guess if you want to fight them in court over the use of 'new' you could, but I think because of the ability to re-shrinkwrap games, you would lose. They can prove that people who sell reshrinkwrapped games cost them money and they don't want to spend that. I just don't think this is some huge deal, consumers should know when a game didn't come directly from a distributor and this is a way of knowing that.

As mentioned, there's way too much scamming as it is; why not protect people buying something they think is new by stopping sellers from re-selling games described as new when they don't come from a distributor?

We will have to disagree on this one Blackhawk, I hope more manufacturer's apply this standard.

[Lorini]

So in this case, I would think that Gamestop would have the same issue since they open every one of their games before selling them.

With distributor/manufacturer permission.

[Blackhawk]

As mentioned, there's way too much scamming as it is; why not protect people buying something they think is new by stopping sellers from re-selling games described as new when they don't come from a distributor?

Because stopping a handful of spammers isn't worth giving up consumer rights that apply to far, far more than the scammers. This affects legitimate merchants far more than it affects scammers, and affects everything covered by First Sale Doctrine, not just video games.

[Lorini]

They are not stopping the resale of tangible goods. Period. They are demanding that the resale be properly labeled. That's not the same as stopping people from re-selling their games.

Hopefully Ebay et al will add an info button that lets the seller say that the "Like New" item is a re-sell of an unopened item. That way everyone can be clear about what's going on.

Also it's not a handful of spammers. As a seller on Ebay for more than a decade I can attest that they have responded to a ton of fraud and scamming by greatly tightening up the rules under which sellers can sell. There are people out there who stop at nothing, they'll sell an empty box as new and take the money and run.

[GreenGoo]

The idea that Bethesda is doing this for altruistic reasons is obviously wrong.

I don't care what others are doing. If I buy a game, never open it, I have every right to sell it on Ebay as new. I don't need to be part of the distributor chain or need Bethesda's permission.

[Daehawk]

I think 'new' can still apply to it if it is not rewrapped. Its new as in never used. New does not imply from the company. If Im browsing Ebay for a 12 year old game and I see 'new never opened' then I have enough brain power to know it was not Bethsoft or whomever that is selling it or responsible for it.

[Blackhawk]

They are demanding that the resale be properly labeled.

It already was. They want to redefine what 'new' means in a way that makes them more money at the cost of consumer rights.

[GreenGoo]

They are demanding that the resale be properly labeled.

It already was. They want to redefine what 'new' means in a way that makes them more money at the cost of consumer rights.

Exactly. I'm opposed to the continued loss of consumers rights. IP law has been hell on the consumer. This is just another attempt to chip away at it.

Also, I fail to see how this potential lawsuit would stop the kind of scam Lorini mentions. Even if somehow Bethesda forces a labeling change, how will that stop people from being scammed? Are people going to suddenly stop buying games on Ebay if they are labeled as "like new, never opened" instead of "new, never opened" by scammers?

[Lorini]

So you'd rather see consumers get scammed by 'new' products that aren't new. Difference of opinion here.

Also really this is an Ebay problem more than it is a Bethesda problem, because as GG says the labeling doesn't directly stop scamming. But what it does do is let the consumer know that this game is not sold through manufacturer distribution channels and I think that's a good thing.

Again, difference of opinion.

[Blackhawk]

So you'd rather see consumers get scammed by 'new' products that aren't new.

When the solution being proposed affects not just the scammers, but every other merchant and other, comparable markets as well? Absolutely, 100%. There are all sorts of victimizations that could be stopped now, today, if only we restricted peoples' rights in extreme ways, crippling a hundred legitimate businesses for every scammer stopped. It just isn't worth the cost.

And I say this as someone who has been scammed on both Amazon and ebay by misrepresented or counterfeit products. I'd rather maintain that risk than take away peoples' rights.

[Daehawk]

Buyer beware.

[Punisher]

So in this case, I would think that Gamestop would have the same issue since they open every one of their games before selling them.

With distributor/manufacturer permission.

i find it hard to believe that Gamestop went to Bethesda (or anyone) and said "hey. We are going to open every new game we receive and sell it opened, but call it new"..

[Punisher]

So you'd rather see consumers get scammed by 'new' products that aren't new. Difference of opinion here.

Also really this is an Ebay problem more than it is a Bethesda problem, because as GG says the labeling doesn't directly stop scamming. But what it does do is let the consumer know that this game is not sold through manufacturer distribution channels and I think that's a good thing.

Again, difference of opinion.

So, what is the big difference? If its re-shrink wrapped, but it works, who cares? If it's re-shrink wrapped and doesnt work, you return it. Its easier to return a new, non-working game than a used, as is game. Gamestop sells their used games for $5 less than full retail, so selling me the same game for anything less than that i still make out regardless of what you sell it as.

[Lorini]

So you'd rather see consumers get scammed by 'new' products that aren't new.

When the solution being proposed affects not just the scammers, but every other merchant and other, comparable markets as well? Absolutely, 100%. There are all sorts of victimizations that could be stopped now, today, if only we restricted peoples' rights in extreme ways, crippling a hundred legitimate businesses for every scammer stopped. It just isn't worth the cost.

And I say this as someone who has been scammed on both Amazon and ebay by misrepresented or counterfeit products. I'd rather maintain that risk than take away peoples' rights.

Do we agree that you cannot misrepresent a product? I think so, you obviously can't call an empty box a game, right? OK so it's actually a discussion on whether or not a game that can't be verified as new can be called new. I say no, you and GG say yes.

So here we are. At the end of the day, in many cases there is government audit and regulations on what you can call stuff. The USDA audits farms that say that their produce is organic right? But in this case, there is only the seller's word for whether or not something is actually new and not re-shrinkwrapped. Normally the US government doesn't simply take someone's word on what something is, there's a zillion cases to prove that. So why is this different? I don't see that. All this situation is doing is saying if something can't be verified by an outside entity to be what it is, then it can't be called that.

I don't see this big huge issue either. Most Ebay sellers of games do in fact get them through legitimate distribution channels and therefore can call the game new. This person bought a game, presumably never opened it, and called it new. Bethesda says no, he can't do that. He can however re-list it as Like New and say it's still in shrink. Bethesda is not telling him he can't resell it, no matter how many times you say that Blackhawk. They are limiting the way he can re-sell it but that way is not onerous, there is already a system in place where he can re-list it. It's not like they said he couldn't sell it online or couldn't resell it at all.

[Lorini]

So in this case, I would think that Gamestop would have the same issue since they open every one of their games before selling them.

With distributor/manufacturer permission.

i find it hard to believe that Gamestop went to Bethesda (or anyone) and said "hey. We are going to open every new game we receive and sell it opened, but call it new"..

It's the only way they'll sell it. They aren't going to have actual CD's in boxes because of theft. It's certainly in any contract they agree to with distributors. My son used to work there so I'm sure of this. That wouldn't even be an issue in a contract discussion, the manufacters/distributors know that in store theft is a problem.

[Lorini]

So you'd rather see consumers get scammed by 'new' products that aren't new. Difference of opinion here.

Also really this is an Ebay problem more than it is a Bethesda problem, because as GG says the labeling doesn't directly stop scamming. But what it does do is let the consumer know that this game is not sold through manufacturer distribution channels and I think that's a good thing.

Again, difference of opinion.

So, what is the big difference? If its re-shrink wrapped, but it works, who cares? If it's re-shrink wrapped and doesnt work, you return it. Its easier to return a new, non-working game than a used, as is game. Gamestop sells their used games for $5 less than full retail, so selling me the same game for anything less than that i still make out regardless of what you sell it as.

From Bethesda's point of view, the scammers cause them customer support issues, otherwise known as money and they don't want that. Now whether or not this will actually help their customer support issues is another question altogether, it may not make any difference, but they paid lawyers to find out so I assume they think it will help.

[Daehawk]

Just call it unopened never used. But it basically is new old stock. As for scammers they will scam and lie no matter the laws.

[Blackhawk]

You're giving Bethesda too much credit. This has nothing to do with customer support. It has to do with them wanting to retain complete control over the supply chain. If every new sale is through Bethesda's channels, Bethesda gets a cut. If there are new sales that are not through their channels, they don't (nevermind that they already got their cut the first time.)

[Daehawk]

To me if I pay full price for a new game and never open it then no matter if its the next day or next decade I should be able to sell it as new.

[Blackhawk]

To me if I pay full price for a new game and never open it then no matter if its the next day or next decade I should be able to sell it as new.

Or if you pay a dollar. Or get it as a gift.

[Lorini]

You're giving Bethesda too much credit. This has nothing to do with customer support. It has to do with them wanting to retain complete control over the supply chain. If every new sale is through Bethesda's channels, Bethesda gets a cut. If there are new sales that are not through their channels, they don't (nevermind that they already got their cut the first time.)

And you've come up with an unprovable conspiracy theory. I won't discuss conspiracy theories, sorry. You aren't in the company, there's no way of proving this. And yet again, the guy can still sell his game, I don't know why you think he can't.

[Lorini]

To me if I pay full price for a new game and never open it then no matter if its the next day or next decade I should be able to sell it as new.

Or if you pay a dollar. Or get it as a gift.

You can sell it as new, Bethesda won't let you call it new. Also really I wonder a couple of things. I bought Octopath Traveler for $60, played it for five hours, didn't like it, put it up on Ebay as like new for $45 base bid and got $57 for it. I lost three dollars. How much of an issue is this really? Especially since you can actually return a game that hasn't had the shrinkwrap broken to Gamestop (they check to be sure) for a full refund. So what we are discussing is a situation where you bought a game and didn't return it in time and now want to sell it and call it new. Now you two say that scammers are rare, I can say that this situation is rare.

And there you are.

[morlac]

You're giving Bethesda too much credit. This has nothing to do with customer support. It has to do with them wanting to retain complete control over the supply chain. If every new sale is through Bethesda's channels, Bethesda gets a cut. If there are new sales that are not through their channels, they don't (nevermind that they already got their cut the first time.)

And you've come up with an unprovable conspiracy theory. I won't discuss conspiracy theories, sorry. You aren't in the company, there's no way of proving this. And yet again, the guy can still sell his game, I don't know why you think he can't.

They just want a "direct relationship" with their players, right? It's all about serving the costumer.

https://www.pcgamesn.com/fallout-76/fal ... t-on-steam

"“If there’s a problem, if there’s an issue, it’s on us. There’s no guessing,” he said. “There’s no, ‘oh, well somebody else updated something and now our thing doesn’t work and we have to wait to fix it.’”

“It’s our game, it’s our problem, and we can talk to you directly,” Hines said.
While Hines didn’t mention it during the Q&A, another benefit – for Bethesda, at least – is that running Fallout 76 through Bethesda.net means the company won’t need to fork a share of sales profits over to Valve.

But Hines said the move will make it easier for Bethesda to provide customer service, since they’ll be dealing one-on-one with customers and their accounts, rather than through a third party.

“We want to make sure, on PC, that we are providing the best level possible,” he said. “I’m positive we won’t get it all right, but I’m also positive that we know that we’re the ones who will have to fix it and do whatever we have to, and not be influenced by anybody else.”"


Weird they just announce that and then these cease and desist start going out.

[Daehawk]

Me personally Im usually referring to old games like 5 - 25 years old not recently bought at a store. They are old but still new. Not new as in recently released but new as in unused. Im a collector so being able to use the word new is important. Like new is not new. New to me if Im looking to buy or sell is never opened. Shrinkwrap or not. Sealed is important. Still sealed is good too I suppose but new is a better descriptor.

Also when a company makes their cash on the sale of a game then to me thats their end of the line on anything to do with it. They can butt out other than whatever original warranty is.. I no longer expect anything from them. If a game comes out in the store and I buy it 2 days later from some guy for a few bucks less then I dont expect anything from the company if its never opened anymore than I would if it was thrashed. As a buyer its all on me. Not sure why suddenly Bethesda out of the blue comes up with this thing.

Ahhhh morlac posted while I was typing. Interesting theory.

As said earlier theres already overkill on digital rights and loss of consumer rights. Anyone laying responsibility on a company though for a second hand game new or used is simply a fool. Collectors and intelligent people would not be the ones doing that. This is just too much overreach again.

[GreenGoo]

You can call it a conspiracy all you want but then you'd have to ignore the last 15-20 years of software licensing changes.

There is no question Bethesda is doing this to take further control over their products despite having sold it and received fair compensation for it.

We don't allow lawn mower manufacturers this level of control. Once a lawn mower is sold I'm free to turn it into a go-cart if I want, yet because software is licensed and not sold, the consumer has less and less control over the product they paid for. This is just Bethesda trying to nudge the line more in their favour and less in the consumer's, nothing more. Believing otherwise is to ignore decades worth of consumer rights erosion that occurred in many different ways, some of which were nearly identical to this case.

You're free to think what you like, but this threatened lawsuit doesn't exist in a vacuum.

As with any right, I'm opposed to losing it on general principles (and yes, this includes gun rights).

The fact that we're arguing whether an unopened product should be allowed to be called new or not should be all the evidence we need that something nefarious is afoot.

If I buy a blender at a big box store, wait a year, return it unopened, should they be allowed to put it back on the shelf beside the other "new" blenders? ARE they allowed to do so? Should they be threatened with a lawsuit for doing so?

In my opinion the answer is intuitively obvious, but I realize that doesn't seem to be the case for everyone. I mostly blame that on successful weaseling by companies like Bethesda.

[Blackhawk]

And you've come up with an unprovable conspiracy theory. I won't discuss conspiracy theories, sorry. You aren't in the company, there's no way of proving this. And yet again, the guy can still sell his game, I don't know why you think he can't.

It's called conjecture. Nobody but a few people at Bethesda know why they're doing what they're doing or what it is intended to achieve long-term. So we can guess at motives. My guessing that a large corporation wants to control distribution isn't any more farfetched or a 'conspiracy' than suggesting that this is all about customer support. They're both guesses. And trying to legally wrangle extra money out of consumers by pushing the limits of what's acceptable is absolutely within Bethesda's established patterns.

To me if I pay full price for a new game and never open it then no matter if its the next day or next decade I should be able to sell it as new.

Or if you pay a dollar. Or get it as a gift.

You can sell it as new, Bethesda won't let you call it new.

Bethesda has no way to make me do otherwise. They can threaten me to get me to stop, but they're making a threat that goes beyond legal precedent, and is just as likely empty. I've read up (briefly) on the case that they're basing their claims on, and they're really, really stretching it.

So what we are discussing is a situation where you bought a game and didn't return it in time and now want to sell it and call it new.

No, we are discussing changing how the law is interpreted to prevent people from selling any product (not just games) as new that didn't come directly from a corporation. We are discussing reinterpreting the law in such a way that adding anything with an expiration date to any product could be used to prevent it ever being being advertised for sale - even as used - in the future. Really. And even if Bethesda has only the grandest of motives, changing the law changes it for everybody. The MPAA and RIAA, for instance, would abuse the crap out of this if they could. Changing how laws work has repercussions. You really have to look at the underlying laws and how they apply across other situations before you start accepting changes to them. And this change is full of pitfalls.

[morlac]

No conspiracy at all. They are about to launch their own digital store and make their next game an exclusive. If this goes well look for the entire catalog to be Betthesda.net exclusive as soon as their lawyers give them the green light. They will also wrangle control of the mod scene this way and continue to monetize it slowly to death.

[Daehawk]

Its almost a moot point these days as everything continues to go digital. There is no market to resell digital games from consumer sides. Not like the old days when you got a boxed physical copy of a game.