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
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
“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.