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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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James Batchelor

Editor-in-Chief

James Batchelor has been a journalist in the games industry since 2006, joining GamesIndustry in 2016, and also runs Non-Violent Game of the Day (@NVGOTD). He does play violent games, but always on Story/Easy mode.

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