Bethesda recently demanded Ryan Hupp, a man from Philadelphia, to remove his listing of The Evil Within 2 on Amazon Marketplace. Hupp was selling the game as ‘new’ in condition because he had purchased it for PlayStation 4, but never got around to actually buying the console, upgrading his PC instead.
The reason Bethesda got in touch with Mr Hupp was to demand that he immediately take the listing down or risk legal action. The letter Hupp received was from Vorys, Bethesda’s legal firm, and told him that his sale was unlawful because Hupp is not an authorized reseller of Bethesda software, citing the condition of ‘new’ on Amazon Marketplace as false advertising.
Vorys actually offer advice for companies looking to prevent the sale of their products on websites such as Amazon and Ebay, informing them of The First Sale Doctrine. This Doctrine says that if a product is materially different from when it was first purchased then it cannot be sold as new by a reseller. It also says that resellers are able to sell goods if there are no material differences, such as a retailer selling a game, still sealed, that they have received from the authorized distributor.
Website Polygon contacted Bethesda regarding the incident, as it appeared to be a crack down on the sale of pre-owned games, especially since the letter Hupp received gave indication that more had been sent to others.
Bethesda’s response confirmed that their only issue with the sale was the fact that it was listed as ‘new’ on Amazon Marketplace, when in fact this was a pre-owned game. Hupp is an unauthorized reseller and because they can’t verify if he has already played the game and repackaged it, they cannot allow it to be sold as ‘new’ anywhere. The company said that they have taken this action in order to ensure that the buyers are protected from fraud, and help ensure that customers always receive the authentic product.
Hupp said that he thought it was a massive overreach of Bethesda to threaten customers with legal action for reselling their game. While the game was in fact sealed it’s possible to see where Bethesda stand, since anyone could re-seal a game they’ve spent months playing if they wanted to sell it as ‘new’ online and get more money for it.