Bethesda explains why it stopped someone reselling The Evil Within 2

Donna Miller
August 12, 2018

Hupp did take down the listing, but he responded to the letter with an argument stating that game resales are protected in the U.S. by the First Sale Doctrine; this law states that customers can resell games (as well as other copyrighted items such as books or DVDs) as long as they are not significantly altered from their original form. In a new and decidedly controversial effort to maintain control over its intellectual property, the company has put legal pressure on an individual trying to re-sell his copy of The Evil Within 2.

Hupp told Polygon that he bought the game as he'd expected to purchase a PlayStation 4, but decided instead to use the money on upgrading his gaming PC, sensibly. According to Polygon, Ryan Hupp, the reseller, received a letter from Vorys, Bethesda's legal firm, demanding that he take down his listing for a new, secondhand copy of The Evil Within 2. However, Bethesda claimed that the sale would not be covered under the First Sale Doctrine because it would lack a warranty, making it "materially different from genuine products".

Appearing to stop someone from reselling a game resulted in a consumer backlash against Bethesda, understandably. The letter went on to state: "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".

Credit The Evil Within 2
Credit The Evil Within 2

While it was unclear at the time why Bethesda chose to single out Hupp's listing, Eurogamer spoke to Bethesda's Pete Hines at QuakeCon 2018 and asked for some more details.

"I don't want our customers buying things that are represented on Amazon as being new and suddenly finding out, oh, the inserts weren't in there, or there's a giant scratch in the disc", Hines said. Hupp described the game as "new" on Amazon Marketplace, something Bethesda says is false advertising. All we're saying is if it's a previously owned product, you have to sell it as a previously owned product - you can not represent it's new because we have no way to verify what you're selling actually is new. "That's it, that's the end of the argument", Hines added.

There is some concern that this will set a risky precedent for the future, as if Bethesda were to win any legal battle pertaining to this issue, it would open the floodgates for other companies to limit the resale of games. It won't take action against anyone who does-as long as they include the word "used" in their listing. However, there have been numerous attacks on used games over the years, like the infamous online pass that attempted to force players to buy new copies, and Microsoft's plan to block used games from working in the original version of the Xbox One. We'll have to wait for the outcome of Bethesda's actions to see if this will be the case.

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