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Bethesda defends legal action against man selling pre-owned copy of Evil Within 2

Publisher says sale of sealed and unopened games still constitutes unauthorised reselling if listed as new

Bethesda has warned a US man that it will seek legal action if he attempts to resell The Evil Within 2 as new.

The publisher's target is Philadelphia resident Ryan Hupp, who was trying to sell the game via Amazon Marketplace, Polygon reports. After the original purchase, Hupp decided he no longer wanted it and - since the game was still sealed and unused - listed it online as 'new'.

Vorys, a legal firm that represents Bethesda, contacted Hupp and demanded that this listing be taken down as such a sale would not be "by an authorised reseller" and therefore was "unlawful". It was also argued listing the game as new could be considered false advertising.

The firm warned that if Hupp did not remove his listing, he would face a lawsuit seeking "disgorgement of profits, compensatory damages, attorneys' fees and investigative and other costs."

Following further correspondence with Hupp, Bethesda released the following statement in an attempt to clarify the issue:

"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."

Hupp has complied with Bethesda's wishes, but argued that his right to sell the game was protected by the First Sale Doctrine in US law, which allows consumers to resell goods as long as they have not been significantly altered from their original form.

Bethesda countered that the Doctrine does not count in this instance because his sale would not include a warranty, thus making his copy of The Evil Within 2 "materially different from genuine products."

Polygon notes that the original notice to Hupp included a phone number for people reselling Bethesda's games to contact, suggesting multiple individuals are facing such a situation.

Speaking to the site, Hupp added: "I understand the legal arguments Bethesda are relying on, and accept that they have some legitimate interest in determining how their products are sold at retail. But threatening individual customers with lawsuits for selling games they own is a massive overreach."

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Latest comments (3)

James Prendergast Research Chemist A month ago
I think the interesting thing with this case is that Bethesda are trying to run back 30-40 years of "normal" a.k.a. "accepted" nomenclature in second-hand selling. It's a very arbitrary thing to do and a very arbitrary time to do it.

If both sides had equal money, I feel like they would be laughed out of the legal system. In practice, they'll get their precedent.
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Daniel Trezub QA Analyst, LudiaA month ago
The amount of money they shell out paying someone to find these ads (what's this person's job position title, anyway?), plus all the legal team and the entire operation is way bigger than the "damage" someone selling a used game can make to the company.
This. Is. Ridiculous.
Sounds like some greedy lawyer's idea to be promoted. The most amazing part is that someone above him/her bought the idea and made the entire company go for it. Now the company itself looks like just another greedy, relentless and humanless corporation, using its hundreds of millions of dollars against a player, fan and costumer. Congrats, Bethesda.
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Paul Jace Merchandiser A month ago
As long as the game is still new and has not been opened then an easy solution would be to sell it on ebay or even craigs list. Problem solved.
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