Bethesda has threatened an Amazon seller with legal action if they fail to remove from sale their copy of The Evil Within 2.
Ryan Hupp was selling a brand new and unopened copy of The Evil Within 2 on Amazon when he was contacted by Vorys, Bethesda’s legal firm, insisting that he remove his copy of the game from sale along with any other Bethesda products, or face legal action.
The issue arose as a result of Ryan Hupp labelling his copy of the game for sale as “new”, which according to Bethesda, is false advertising as the game is no longer in its original state. Vorys argued that despite being unopened, the game is no longer being sold with a warranty and, therefore, it is false to advertise it as being new. Going by that argument, what Bethesda and the everyday consumer class as “new” appear to be two different things.
It is this loophole which Vorys appears to be trying to exploit when it comes to getting sellers to remove their “new” copies of Bethesda’s games for sale. Vorys also took an issue with Hupp not being an “authorized reseller”. Again, it appears that this issue is presented as a result of Hupp’s wording in his listing.
According to Bethesda though, they are not attempting to block the sale of pre-owned games and never will. Instead, they insist that this is an attempt at protecting buyers from fraud and ensuring that customers receive authentic new products, which include their warranty.
In a statement released to Polygon, Bethesda stated:
“Bethesda does not and will not block the sale of pre-owned games. The issue in this case is that the seller offered a pre-owned game as “new” on the Amazon Marketplace.
We do not allow non-authorized resellers to represent what they sell as “new” because we can’t verify that the game hasn’t been opened and repackaged. This is how we help protect buyers from fraud and ensure our customers always receive authentic new product, with all enclosed materials and warranty intact.
In this case, if the game had been listed as “Pre-Owned,” this would not have been an issue.”
Following the notice from Vorys, Hupp removed his copy of the game for sale. However, while he understands the legal arguments used by Bethesda, he nonetheless feels that threatening sellers with lawsuits “is a massive overreach.”
This may not be the last we hear of such practices though. In 2016, Vorys published a post titled “Three-Step Approach to Stopping Unauthorized Online Sales on eBay” informing game publishers on how could they stop their games being sold unlawfully on digital marketplaces.
While it appears that sellers listing their titles as used or pre-owned are safe from legal action, it does nonetheless set a precedent for future threats of legal action against anyone who attempts to sell an unopened and new copy of a game, unless they’re prepared to list it as used, even if it is unopened and new.