
Bethesda blocks resale of used game - detaro
https://www.polygon.com/2018/8/11/17661254/bethesda-sell-used-games-amazon-block
======
ikeboy
Vorys is corrupt. I've received threatening letters from them as well, that
came to my physical address despite it not being listed anywhere on my Amazon
store. It also contained false assertions (I'd bought the goods in question
from an authorized distributor that confirmed to me that the letter was simply
lying).

I know multiple other sellers that also had this issue. It is my belief that
Vorys is illegally paying Amazon insiders to get contact information for
sellers, as there is no legitimate path to get that information that does not
involve a subpoena to Amazon, which would involve an active lawsuit.
Unfortunately, this is hard to prove.

~~~
ikeboy
In general, companies can be extremely abusive if they don't want their stuff
being sold online. I know multiple people who have bought directly from
companies, and later had the company claim to Amazon that they were infringing
IP. The listing goes down, sometimes the entire account as well, till you send
in invoices and convince Amazon to accept them and reinstate the listing,
which takes time.

~~~
close04
I wonder if this is more of a Bethesda initiative or a law firm initiative. Is
Bethesda aware that bad PR these days can cripple your launches? Are they
really risking an increase in "revenge piracy" or loss of sales just for a
marginal reduction in "losses" from these Amazon sellers?

People who buy used games don't want to pay the new price, and they won't. One
way or another they'll get it for the discounted price. It's best if you don't
alienate your customers for something that will bring no palpable benefit.

~~~
phobosdeimos
"People who buy used games don't want to pay the new price, and they won't"

They will once physical disks are abolished for digital stores. They have been
pushing this for years and PC gaming is already there. No more used games.

~~~
close04
I wonder if people will just create a different account for every game and
just sell the account :D.

And I don't see PC games being any different than console ones. Most games
still have physical copies that can be resold, or am I missing what you meant?
Physical copies still have plenty of life in them with games ballooning to
triple digit GBs and most of the world being stuck on slow internet.

~~~
Macha
Many PC physical games have been Steam keys in a box for a long time.
Sometimes they come with a disk with the Steam installer for the release
version but it has DRM to prevent running it without activation on a specific
account, so it only really saves on download time for a couple of months until
patches are as large as just downloading the game anew.

In recent years, there's a been few more cases of Origin/uplay/etc. keys in
the box instead, but the same limitation applies.

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rpdillon
This is an interesting legal move: using a warranty to claim that a resold
good is 'materially different' from an original, and therefore is not subject
to first sale doctrine. If it held up in court, it seems extremely dangerous
for consumer rights.

~~~
greenyoda
How is that different from selling a used car that's no longer under warranty?
If this ever gets litigated, is a court likely to make a decision that
undermines the U.S. used car market? Or is the company hoping that it can
intimidate sellers into backing down without ever having to go to court?

I suppose that it would be stupid for car manufacturers to attempt to put
restrictions on resale, since that would significantly reduce the value of a
car. But the same thing could happen to games: if someone knows that they
can't resell a game if they get tired of playing it, they'd be somewhat less
likely to buy it in the first place (or not be willing to spend as much for
it).

~~~
seanalltogether
The arguments only apply to the sale of copyrighted material, not general
goods.

~~~
ikeboy
Warranty is used to get around first sale rights for trademarks, not
copyrights. The argument is the trademark can no longer be used if the goods
are "materially different", such as by not having a warranty.

------
stephengillie
> _Bethesda recently sent out a notice to at least one seller on Amazon’s
> Marketplace who was trying to sell a sealed copy of The Evil Within 2,
> demanding that they remove their listing._

This could be an attempt by Bethesda to rein-in what they see as "counterfeit"
products, since Amazon is largely unwilling to police their own Marketplace.
Though the article states "Bethesda is a notoriously litigious company", and
have a heavy-handed history.

~~~
jjeaff
They could actually be charged with perjury if they are using the DMCA to take
down listings that they have no proof are counterfeit and turn out not to be.
Though I am not sure if DMCA applies in this case.

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TangoTrotFox
Wow, this seems to be taking a piss all over the first sale doctrine if this
article is not somehow playing fast and loose with the facts. Seems like an
open and shut case for somebody like the EFF to take on, with some great press
for themselves in the process. Feels like there has to be some piece of the
story missing here.

~~~
throwaway080383
From the article:

 _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._

IANAL, but it seems to me that if this argument goes through, it would render
first sale doctrine useless, as you could tack on a warranty to just about any
old product.

~~~
ams6110
Warranties for software are notoriously narrowly scoped. Not warranted for any
particular use or fitness for any purpose, etc. About all they _will_ warrant
is that the media itself works and offer to replace it if it doesn't.

So just warrant that what you are selling is what it claims to be and offer a
refund or replacement if it isn't. That seems to be materially the same as
what the original seller provides.

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classichasclass
If this expansion gets to and is upheld by the courts, it makes me wonder
about DVDs and Blu-rays people sell with either now expired or previously used
digital codes and whether this would be subject to the same "material
difference."

~~~
pbhjpbhj
Nothing to do with them then, it's not their product you're reselling as it's
"materially different" \- oh right, so for copyright purposes it's an exact
copy, but for any natural rights the consumer should have it's a different
product.

This sort of evil should be stamped on hard by government.

~~~
lisper
You mean the same government that is currently controlled by corporations and
doing everything it can to maximize corporate profits? Yeah, good luck with
that.

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pbhjpbhj
Did they notify consumers that they were bundling a warranty, sounds like all
the purchasers should be due a partial refund and any people with damaged
discs should get replacements, under their warranty.

~~~
CocaKoala
[https://help.bethesda.net/app/answers/list/search/1/kw/warra...](https://help.bethesda.net/app/answers/list/search/1/kw/warranty/dym/1/p/886)

There's no mention of a warranty on the Evil Within 2 support page

[https://bethesda.net/en/search?q=warranty](https://bethesda.net/en/search?q=warranty)

And no mention of a warranty on their main website either.

The amazon store page says that for warranty information, you can contact the
seller (which would be amazon, and presumably amazon's warranty) or that more
information may be available on the manufacturer's website (and the above
links demonstrate that it isn't).

So yeah, my question is "Does anybody know about the warranty, and if not, how
is a warranty that you don't know about materially different from not having
one?"

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Covzire
After their apparent pivot to becoming an MMO company, I don't expect many
more good games out of Bethesda anyway.

~~~
dvlsg
I suppose they're only the publisher, so maybe this doesn't count, but Doom
2016 is hands down the best fps I've played in a long time.

~~~
morganvachon
Same, I just picked it up in the Steam sale, and it's what I wanted out of
Doom 3 fourteen years ago. I feel conflicted that I just gave $10 to Bethesda
while they are pulling this stunt, but it's a great game nonetheless.

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digi_owl
Was gifted Fallout 4, and what was in the case was one DVD.

Upon install, that required a Steam account, it would pull down 2x or more
that of the content of the DVD to make the game playable.

And then i had to go mod hunting basically on day one, because they had
implemented a non-optional head bopping on the first person camera...

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beerlord
Can Blu-Rays be manufactured to make each disc unique, with an embedded code
that is used to link a license of the game to an account?

Then the publisher could simply decide to disallow games from being activated
on another account.

Or, bundle a CDKey inside the case, but I think this exposes significant fraud
risk if a rogue employee cracks open hundreds of cases from a shipment, sells
the keys online, then reseals them.

~~~
LeoPanthera
I believe this was how the XBox One was originally going to work, but the
outcry was so loud that Microsoft had to backtrack before the console was
launched.

A particular criticism was that you would not be able to play any games
without internet access, which would have made it useless for many people,
including for example some military personnel deployed overseas.

~~~
beerlord
Its just a matter of time before that happens. How many gamers who aren't on a
plane, in a train or in a base in Fallujah don't have constant broadband
access?

I think those instances are being reduced yearly all around the world.

The next generation of consoles will have a low-end version that hosts some of
the calculations locally, such as input and collision detection, but all of
the detailed rendering etc. on the cloud. All games will be inherently 'online
only', distribution of optical disks will become pointless and everything will
be linked to an account - no resale.

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bitwize
Software is licensed, not sold. Generally speaking if the license indicates
it's nontransferable (which it almost always does), the software is not
subject to first-sale doctrine and is illegal to sell.

~~~
roywiggins
Not unless the copyright holder can produce documents proving it was a
licensing and not a sale:

[https://www.finnegan.com/en/insights/copyright-
infringement-...](https://www.finnegan.com/en/insights/copyright-infringement-
case-is-blocked-by-first-sale-defense.html)

If I just buy a copy of a game from a physical store and I don't sign a
licensing agreement, it's hard to see how that would pass the test here- he
never even opened the jewel case.

