Bethesda Explains Why It Threatened A Lawsuit Over Secondhand Game Sale

Bethesda says it won't allow non-authorized sellers to offer something as "new."

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Bethesda has spoken up to share its side of the story after its lawyers threatened legal action against someone trying to see a secondhand copy of The Evil Within 2 on Amazon's Marketplace. But first, some context: A person from Philadelphia, Ryan Hupp, told Polygon that they bought a new copy of The Evil Within 2, never unsealed it, and tried to sell it on Amazon's Marketplace. Bethesda's legal team, Vorys, reached out to Hupp to say what Hupp was doing was unlawful in part because Hupp used the word "new" to describe the game. Hupp complied with Bethesda's request but told Bethesda's team that the sale was protected by the First Sale Doctrine in the US that allows people to re-sell copyrighted material. However, Bethesda reportedly said this doesn't apply because the game is lacking the warranty that would have come with the game initially to make up its original form.

In a statement to Polygon, Bethesda said it went after Hupp because he was attempting to sell The Evil Within 2 as a "new" game. "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," Bethesda said. "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."

Bethesda said it would not have threatened action against Hupp had the listing been presented as "pre-owned."

Bethesda marketing boss Pete Hines chimed in with some further context and clarification around the situation. Asked why Bethesda even cares what some other person does, Hines said, "Because it's our customer. Does it have the extras that came in the box? It is it missing stuff? Is the disc now scratched and need to be replaced by us?"

He added: "People who buy our games are out customers no matter where they buy it. It's our product. It's our responsibility." Further still, Hines pointed out that Bethesda wouldn't have made any extra money. It took action because, "It's simply about new being truly new."

And as Hines points out, one of the video game industry's biggest reseller of games--GameStop--has a policy that states it cannot accept sealed copies for resale. "You have to open it. They will not sell it again as new. Cause they can't be sure either," he said.

While this lawsuit might not move forward, ZeniMax--which owns Bethesda--is currently suing Warner Bros. over claims that the movie and TV giant's Westworld mobile game is a ripoff of Fallout Shelter.

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