Wherein Bethesda acts like a$$holes

[Rumpy]

Heh, no worries on the name. I figured it was either a slip or a frustration-induced name change

I think that whether Bethesda is right or not, that it does expose a fundamental issue in Amazon's marketplace and If I were them, I'd look to improved it. It's less about labels, but what scammers have been allowed to sell as of late, and it's a problem we're only seeing getting worse. I read a relatively recent article about an inventor and his product. He was selling it on Amazon, and then a cheap counterfeit product began selling on the same marketplace, advertising exactly the same way and even using the same pictures, and because it was cheaper, he was being undersold and his listings pushed off the first page of results. The inventor was notified by a buyer of this and put in a complaint to Amazon yet they did nothing, letting the counterfeit sell as if it were his product. Now I'm not saying this is what happened to Bethesda, but I don't find it improbable. It sounds to me like Amazon needs to find a way to pass some more checks when someone is setting up a marketplace and in general putting in more security. Like I said though, there's no easy answer. I think it needs to start somewhere though.

[GreenGoo]

Heh, no worries on the name. I figured it was either a slip or a frustration-induced name change

I think that whether Bethesda is right or not, that it does expose a fundamental issue in Amazon's marketplace and If I were them, I'd look to improved it.

See, I'm really trying to meet in the middle, but I read comments like the above and I'm just left scratching my head.

If I have an unopened, unused copy of a game and I tell you I've got a new game for sale, that's not a scam. "new" is the appropriate label for it, but even if it isn't, changing it to something else does nothing (that I can see, please elaborate on your own views on this) to expose anything about anything on Amazon.

To repeat, scammers exist. I don't have personal knowledge about the Amazon Marketplace being a hive of scum and villainy, but I've accepted the premise at face value anyway. How does the Bethesda lawsuit help expose or bring attention to this fact? The lawsuit is not dependent on the seller actually being a scammer. The legitimacy of the lawsuit is not dependent on scammers existing AT ALL. Either it's fair to call an unopened, unused product "new" or it is not, and even if it is not (a premise I don't agree with), how are consumers being harmed by that fact?

If we throw out every other aspect where this entire thing falls down (there are many, as I've tried to repeatedly illustrate) and simply focus scammers, I fail to see how this lawsuit changes things one iota. Scammers are doing illegitimate things already. Changing the labeling requirements just changes a previously legitimate thing (labelling as new) that legitimate sellers AND scammers did and makes it illegitimate. In a way turning legitimate sellers into scammers by re-interpreting the law.

I *am* trying to see both sides of this but every time I look at it, Bethesda's stance is...crazy.

[Zarathud]

Here's an easier question for the likes of Zarathud, since he assures me I don't understand, so maybe he can clarify.

How does changing an Amazon listing description from "new" for an unopened, unused product to "something other than new" reduce the number of scams occurring?

Distribution channels. Bethesda's argument is that consumers assume a "new" product comes via legit distribution channels. In some states that would come with implied warranties (although licensing makes that murky).

Consumers don't enter into the picture -- except as pawns used by both sets of business distributors to justify their business method.

Bad intent doesn't matter. This is a business method dispute about commercial resellers, not end user resales. A reasonable person knows that buying PC CD Keys from an end user is dumb and risky. That's why a "new" label matters.

But frankly it's clear the Goo brain shuts down because you hate and distrust Bethesda. Fine, but that irrational hate makes you blind and an easy target for propaganda.

How *could* this be net positive for consumers? Say Bethesda plans an "add existing product key" to its new distribution service. If they don't lock down distribution channels in advance, they have a mess ripe for fraud. Especially after they announce it, so legal tells them to lock that shit down. I don't know if that's true. Neither do you. I'm certain it's more complicated than either of us know. Because business.

[GreenGoo]

Give me a break.

I've already said I don't know Bethesda from a hole in the ground and I've clearly explained what motivates my opinion on the matter.

It's neither blind, nor hate.

[Daehawk]

Bethesda's argument is that consumers assume a "new" product comes via legit distribution channels.

That is just so ridiculous. Maybe MAAAYBE if you're a total moron.

[Zarathud]

Product labeling is driven in response to complete morons.

"Do Not Put Bag on Head" was written for the stable geniuses in this world.

[Zarathud]

It's neither blind, nor hate.

It's certainly not kitties and puppies.

More like the Dark Side.

[Daehawk]

Product labeling is driven in response to complete morons.

"Do Not Put Bag on Head" was written for the stable geniuses in this world.

Hahaha and "Do not eat"

[GreenGoo]

It's neither blind, nor hate.

It's certainly not kitties and puppies.

More like the Dark Side.

Well argued. You've convinced me.

I particularly like your "business is hard" rebuttal.

[GreenGoo]

Product labeling is driven in response to complete morons.

"Do Not Put Bag on Head" was written for the stable geniuses in this world.

Hahaha and "Do not eat"

Exactly. Both of those examples are to protect companies from liability, not to actually prevent death from putting a bag on your head.

While it's true that some labeling requirements ARE there to protect the consumer (product contents, for example), the examples you've both mentioned are pure liability shields. That's not to protect the consumer, that's to protect the corp from the (moronic) consumer. That's the opposite of consumer protection.

edit: For the record and trivia, the US does not require "do not put this bag on your head" warning labels on plastic bags. i.e. There is no Federal requirement for the label Zarathud used as an example of consumer protection labeling.

Full disclosure and in a thrilling victory for states rights however, some states do require the label. Apparently 6 of them.

Fuller disclosure, Canada *does* require such labeling.

Full(est?) disclosure, the law is directed at protecting babies and young children. Which is interesting, because while I think Canada is pretty awesome in a lot of ways, it is my understanding that we have not genetically engineered babies who can read and might be deterred by such a label. At least not yet.

Why does America hate children? Or do they?

[Madmarcus]

This whole thread is interesting to me in that I can't see any real reason to talk about consumer rights or particularly care. Someone bought a game. As soon as that happened it became not-new. The owner then has the right to sell it but they are limited (a tiny bit) on how they can describe it. Sealed, sure. Unopened, fine. But not new.

I can muster a little low grade concern that if Bethesda is that passionate about it there might be a problem but, on the face of things I agree with their logic.

Sent from my Moto G (5) Plus using Tapatalk

[GreenGoo]

You're not alone in that viewpoint.

At what point of the distribution channel does a game change from "new" to "not new"? When it arrives in the consumer's hands? That's Bethesda's view and it sounds like it is yours as well.

I think we can agree a game in it's original shrink wrapping has not been altered at any point it changes hands, from manufacturer to distributor to retailer to consumer. Yet Bethesda (and you, Madmarcus) thinks it becomes used only during that last exchange.

Bethesda has been clear about their reasoning (if we take then at their word and don't speculate).

Do you agree with Bethesda's view? If yes, why? What makes the last exchange different from all the other transactions where money changed hands in exchange for a shrink wrapped game? Why does the retailer get a pass but the consumer not?

For the record I'm all tuckered out on this one, I just want to know what makes it different.

If I'm at fat camp and my mom dad Cartman brings me a big bag of candy that I decide to sell to the other kids instead of eating it myself, am I selling used candy?

Let's assume food is different.

I'm at shitty music camp and Cartman brings me me a bag of Britney Spears CDs and I decide to sell to the other kids instead of listening to them myself, am I selling used crappy music CDs? Why?

If the answer is "because" or "because the consumer isn't part of the distribution chain" that seems incredibly arbitrary.

[GreenGoo]

It sounds like people are of the opinion that once a game is "out in the wild" it's automatically used, even if it was sold in a cardboard box with 20 other copies and never left the box. With no physical changes, the idea of "new" vs "not new" is purely conceptual. An idea.

For me, an unopened, unused product is by definition new whether it's sitting on a stockroom shelf collecting dust or in a person's basement collecting dust, although products with expiration dates or that can be affected by the passage of time complicate things.

So new for me is "has this product been put to use or not?". An opened package complicates things too, but a never opened package makes it easy (imo of course).

[Blackhawk]

And what about post-market retailers? Dollar stores that buy in bulk from retailers? Bethesda makes it. The distributor handles it. Best Buy puts it on the shelves (still new.) It doesn't sell, so Best Buy sells it to Dollar Land-O-Fun. It's now outside of the normal channels. Is it still new?

What makes dollar store products new, but completely identical consumer owned products used? The fact that they were purchased with the intent to resell? The fact that they own a business license? That seems like an awfully strange way to define 'new.'

[TheMix]

Having never thought about it prior to this moment...

"New", to me, implies/suggests that there has never been an individual "owner". I'm not counting stores, manufactures, distributors. None of those purchased the item for "themselves". At some point in the process the item gets purchased by someone with the intent to use/enjoy the item. At that point, I'd agree with the argument that the item is no longer "new".

[Blackhawk]

It's interesting to me that so much of the disagreement seems to be about semantics. Some define new as the intent of the owner, others define new as an innate quality of the product.

[TheMix]

Yeah. That occurred to me as well.

It seems like the product in question makes a big difference as well. If I bought a car, had it delivered (so that it was not driven at all), let it sit in a garage for 10 years, and then put it up for sale, no one would accept my selling it as "new".

[Daehawk]

See you didn't have shrinkwrap on it

[GreenGoo]

It's interesting to me that so much of the disagreement seems to be about semantics. Some define new as the intent of the owner, others define new as an innate quality of the product.

I attempted to illustrate that with my post, so it's no surprise that I agree with your assessment. It's weird to hear someone (the Mix) come right out and say it, because that thought is so foreign to me. I'm sure it makes perfect sense to him (nothing derogatory intended here). It does not to me. I mean, I get it, I understand his point of view, it's just...intent matters in lots of places, but the state of a physical product? Weird.

[GreenGoo]

Yeah. That occurred to me as well.

It seems like the product in question makes a big difference as well. If I bought a car, had it delivered (so that it was not driven at all), let it sit in a garage for 10 years, and then put it up for sale, no one would accept my selling it as "new".

What if it were a blender sitting in it's original packaging for 2 months? 1 month? What is the cut off point? If I buy a blender, return it the next day unopened, and the store puts it back on the shelf, do they need to label it "not new"? Obviously we see 5-10% discounted "open box" sales, but no store would do that for an unopened box, so...what's the deal?

[TheMix]

That feels like muddying the waters to me.

If I bought a blender, brought it home, and then decided the next day that I didn't want it, then putting it up on Ebay as "new" is questionable.

Returning it to the store changes things significantly from the original discussion. Some stores file all returns with the distributors; then sell the products at discounts, throw the items away, give the items away, etc. So will definitely slap some tape on the box and put it back on the shelf. I think the main difference, though, is that if someone else buys that item, they now have a relationship with the store. If something goes wrong, they can take it back. Which goes back to the original discussion, I think, in that a "new" item generally comes with a warranty of sorts.

But if someone buys my blender and then contacts me a week later to tell me it doesn't work... well.... I may or may not tell them to go jump in the lake.

And maybe that's part of the confusion... at least for me, "new" implies some sort of guarantee/promise that what I'm getting will work, or the entity that sold it to me will address the problem. "Used", or "Like New", if you prefer, tells me that I'm on my own if there are any issues. Again, that's when purchasing from an individual.

[GreenGoo]

That feels like muddying the waters to me.

Of course (it feels like) it does, because from my perspective you aren't seeing any ramifications outside of the small set of parameters that cover this one case, but that's not how the world works, usually.

Again, you are limiting yourself to "not new" because you're a consumer, but the second the blender returns to a retailer, it's "new" again.

That is, to me, a bizarre distinction based solely inside one's head. Again, you are not alone in making this distinction, it's just completely foreign to how I view the world.

I can't help but find that the rest of your post illustrates just how much freedom you give a retailer to do whatever they want with a returned item, but zero freedom for a consumer.

Anyway, has anyone been following the actual case being discussed? Did the re-seller capitulate or is the suit going forward? Any news?

[Daehawk]

When I was buying games on ebay as a collector the quality mattered but new is new. New to me in a game Im thinking of buying means either shrinkwrap never removed or the seal / tape on it is still intact. Like new can mean in perfect condition or simply opened. Used means its been used by someone or is lower quality.

Take a brand new game and allow it to be water damaged in the box or something then that is low quality....new damaged perhaps. Also new old stock is a name I pay attention to. It usually means brand new stuff never opened or used but can be 10+ years old.

basically

New = new not used never opened any age of manufacture
Used = opened or actually used even if made or bought yesterday.

[Daehawk]

Anyway, has anyone been following the actual case being discussed? Did the re-seller capitulate or is the suit going forward? Any news?

Bethesda blocks resale of a secondhand game (update)

Bethesda Explains Why It Threatened A Lawsuit Over Secondhand Game Sale

Bethesda defines what “New” means when it comes to reselling their games

[TheMix]

What has me shaking my head is that I'm being told I'm focusing on this single example, when I should be looking at the big picture. However, it seems like people looking at the big picture are forgetting that not every product is the same. So trying to find a single rule is absurd.

Hypothetical: I inherit a piece of property from a great-uncle... Once upon a time this property was home to a car dealership. On that property I find a vehicle from 1965 in the showroom that has never been used. I should be able to sell it as "New"? Oh, and don't get me started on the "new" Hostess snacks that I found in the break room.

Extreme? Of course? Silly/absurd? Undoubtedly. But what I'm hearing is that as a consumer, if I never used an item that has come into my possession, that I'm allowed to sell it as "new", no matter what.

[Daehawk]

Car would be new old stock.

[GreenGoo]

What has me shaking my head is that I'm being told I'm focusing on this single example, when I should be looking at the big picture. However, it seems like people looking at the big picture are forgetting that not every product is the same. So trying to find a single rule is absurd.

Consumer laws cover more than video game cds.

I'm not telling you you're focused on the wrong thing, I'm asking you if you feel your logical holds up in other situations, and you're telling me other situations are different. While we can make laws for each situation individually, or products individually, we try not to do so.

*I'm* the one that brought up that items with expiration dates or that change with the passage of time change the equation. So I agree (actually, you're agreeing with me) that items that deteriorate over time potentially need a change in viewpoint. It's also why I struck out my food references, several posts above. Is there such a product as "used" food? Because if your hostess snacks aren't new, what are they? Used?

Listen, I get your viewpoint, I see what you're saying and I understand in general how to interpret things as you see them. I just don't agree with your definition of new as it applies in the consumer world. And, in my opinion, your view is not principled (a law term that Mr. Fed taught me. It's not an insult) in that it can't be applied across other, similar situations.

Examples like the returned blender throw a monkey wrench into your logic. If the store can sell it as new, then it's new. If the exact same blender in a private citizen's hands is not new, but it is in the store's hands, what differentiates between the two products? It seems like you agree with Bethesda, that once a product leaves their control or the control of people they have a contractual relationship with, it becomes used. That just seems arbitrary to me.

If I ran a video game store and I was all out of *popular new release* so I ran over to walmart and scooped up their copies because no one had realized they had any yet, then put them on my shelves, do I need to label them as "not new"? What is the difference between doing that and me buying a game at walmart, deciding I don't want, and putting it up for sale calling it "brand new"?

I think we can all agree that condition of a product matters. We agree that maybe passage of time matters, but we can't agree so far on how much time is the right amount of time. We don't agree on who has held it in their hand matters.

[GreenGoo]

But what I'm hearing is that as a consumer, if I never used an item that has come into my possession, that I'm allowed to sell it as "new", no matter what.

That's actually not what we're saying. That's an extreme position that no one here is holding, so there's no point in arguing against it.

I should just let Blackhawk handle all this. He's much better at this.

What do you think about Blackhawk's post market resellers? What about his dollar store bargain bins? How do you see those?

[TheMix]

Examples like the returned blender throw a monkey wrench into your logic. If the store can sell it as new, then it's new. If the exact same blender in a private citizen's hands is not new, but it is in the store's hands, what differentiates between the two products? It seems like you agree with Bethesda, that once a product leaves their control or the control of people they have a contractual relationship with, it becomes used. That just seems arbitrary to me.

I can't tell if you are trying to be obtuse, just like being argumentative, are stubborn, or what...

I thought we were having a discussion about an individual selling an item that they haven't opened, but you keep talking about returning items to stores and what they then do with those items.

So let me just say that when you, as an individual, have a posted return policy to address my dissatisfaction as a consumer, then I'm willing you accept you as a reseller... and you are welcome to call something "new". But until then, you're just someone who found something that is 'reportedly' unopened/new that you are selling to me "as is".

And with that, I'm out. I knew better than to engage, but I had a weak moment. And if you think I'm getting into a "discussion" with Blackhawk, you are crazy. I'm pretty sure that if the two of you ever got into a debate, the internet would break.

[GreenGoo]

First, if I came across as intentionally obtuse or argumentative for argument's sake, I apologize. I took to heart Zarathud's criticisms and have changed my tone and approach, if not my view point.

I find you throwing up your hands in a "I can't deal with this" pretty lame actually. Defend your position or don't, whatever.

Any minute now Zarathud will come in here and claim you're being defensive because your viewpoint was challenged. I'm sure of it. It's not personal, he assured me. I'm sure he'll be consistent.

I have no idea what you're talking about with regard to Blackhawk. If I were him, I'd be seriously offended, but maybe you guys have a history or something.

I thought we were having a discussion about an individual selling an item that they haven't opened, but you keep talking about returning items to stores and what they then do with those items

Well, we are, but the crux of the matter is whether Bethesda's lawsuit has merit, and that lawsuit is built around changing the current precedent regarding established consumer law. So while we are having a lovely discussion on whether an unopened CD is new or not, the ramifications of the lawsuit on the same subject, has much farther reach than our forum discussion.

But that's all been covered in the thread.

It was kind of naive to think you could just drop in, give your opinion on what is obviously a contentious subject, then leave without anyone challenging you, wasn't it?

Anyway, Ok, thanks for your view point. Others share it, just not me.

[GreenGoo]

Just a reminder because we haven't talked about it much (although the Mix touched on it), the original issue Bethesda had was that the seller was not an authorized seller and that because of this the product was being sold "unlawfully" and was not covered under First Sale Doctrine.

The "new" label was a separate, distinct issue but part of the overall "cease and desist".

So while we've spent a lot of time debating the what the meaning of "new" is, the threatened lawsuit did not rest solely on that.

Bethesda is directly attacking

The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner.

Which *IS* a consumer right's issue.

According to the arguments put forth by Bethesda (directly from the horse's mouth, this is not speculation), even without the "new" controversy, the seller is selling their product illegally and First Sale Doctrine doesn't apply.

In any case, the threatened seller has caved, so there is not going to be any new precedent but buyers are safe, for now, from the evils of people selling things on Amazon Marketplace without the explicit approval of the IP owner.

Edit: I'm reading that Bethesda is a "notoriously litigious company" which makes me laugh. Remember I don't know Bethesda from a hole in the ground (it's true, I don't) and anyone can write anything on the internet (see this thread) but it's funny even if it's not true (it might be, I have no idea).

[morlac]

It sounds like people are of the opinion that once a game is "out in the wild" it's automatically used, even if it was sold in a cardboard box with 20 other copies and never left the box. With no physical changes, the idea of "new" vs "not new" is purely conceptual. An idea.

For me, an unopened, unused product is by definition new whether it's sitting on a stockroom shelf collecting dust or in a person's basement collecting dust, although products with expiration dates or that can be affected by the passage of time complicate things.

So new for me is "has this product been put to use or not?". An opened package complicates things too, but a never opened package makes it easy (imo of course).

For me at least it is NEW when it is on the shelf at the retailer who procured it from the manufacturer/distributor. They have contracts and etc and have earned my trust that said product has not been opened or gone through any other middleman channels besides any normal ones for the industry. I don't care if it's in the original shipping crate filled with 49 other unopened copies still shrink wrapped. If it is not at the original retailers it is not NEW imo. Especially not if it's being sold on some dude's myface page. I could see a grey area for any mom and pops re seller's out there that by unsold merchandise in bulk but it would depend.

[GreenGoo]

And that's fine. Most people including me build a trust relationship with retailers and have certain expectations that we will be protected by consumer law if things go awry.

Your mom and pop example is a good one because what we're seeing are one man operations on eBay and Amazon. That's why everyone considers feedback so important. There's little to no way to know if a seller is trustworthy or not. I'm just confused how a determination of trust or lack there of is materially affected by calling something "new" or not.

In any case, as I mentioned just recently, the threatened lawsuit suggests that selling Bethesda's games is not covered under First Sales Doctrine, which has nothing to do with the label "new" and everything to do with whether Bethesda says it's ok to sell their products or not, used or new.

Until they actually sue someone and someone defends, this is a mental exercise (in futility?). With no expectation of the courts ruling on any of this, I'm bored now.

As the Mix implied, I can find other things to argue about, and if there is no chance of changes to the law (or it's interpretation) then I don't give a crap that Bethesda is acting like a bully. I can find a hundred examples of corporations doing similarly questionable things every day in the name of business (or so I'm told). Yawn.

[Daehawk]

Shouldn't be an issue. If something is labeled new and is ok with the buyer so be it. if the buyer doesn't consider an item labeled new as such then they dont have to buy it. Dont need Bethesda helping me out by actually not helping me out and curtailing yet more of my rights.

[GreenGoo]

Shouldn't be an issue. If something is labeled new and is ok with the buyer so be it. if the buyer doesn't consider an item labeled new as such then they dont have to buy it. Dont need Bethesda helping me out by actually not helping me out and curtailing yet more of my rights.

The details of the correspondence with Bethesda's lawyers make it clear that even without the "new/not new" discussion, without Bethesda's permission you cannot sell their copyrighted material, not even under First Sales Doctrine.

That should been the focus of discussion, because the (threatened) lawsuit exists even without the labelling debate. Oh well, guilty as charged.

[Daehawk]

Im far past tired of having my rights taken by needless laws.

[Blackhawk]

I have no idea what you're talking about with regard to Blackhawk. If I were him, I'd be seriously offended, but maybe you guys have a history or something.

I'm not offended. TheMix is a great guy, and I respect him. We've just butted heads a few times.

[Blackhawk]

The details of the correspondence with Bethesda's lawyers make it clear that even without the "new/not new" discussion, without Bethesda's permission you cannot sell their copyrighted material, not even under First Sales Doctrine.

That should been the focus of discussion, because the (threatened) lawsuit exists even without the labelling debate. Oh well, guilty as charged.

I agree. The premise that the warranty no longer being good represents such a change to the product that you can no longer advertise it (you could still sell it, you just couldn't put it's name or Bethesda's on it) regardless of new/used status is such an overreach that it would be humorous if it wasn't so scary.

[Zarathud]

It's not really a new law. And not really a consumer issue. Bethesda says their software license prohibits resale even in package. That's an IP and contractual rights if not distribution channel terms with Bethesda.

It may be anti-consumer or broad overreach or questionable given years of non-action, but it's not unexpected if Bethesda is going to enter the sale/resale marketplace in a post-Steam digital distribution world. Market forces more than anything is going to be behind the move. Not dickishness or greed or litigiousness. Bethesda isn't spending money to throw its weight around without a business reason.

You might not like it. But you can vote with your dollars.

[Zarathud]

I find it funny that Bethesda is arguing they respect a software/sale warranty. Much like the Devil saying he's selling HVAC because it could be a Cold Day in Hell someday.