(good luck w/that.  --rick)

by Paul Lilly — Saturday, August 11, 2018
Bethesda Threatens To Sue Individual Consumers Over Used Game Sales

It appears that Bethesda Softworks is trying to sue the practice of used of 
game sales right out of existence by leaning on a legal loophole. We do not 
know if that is actually the case, but those are the optics, anyway, after the 
publisher threatened legal action against an Amazon Marketplace seller for 
trying to sell a still sealed, albeit second-hand copy of The Evil Within 2.

That seller is Ryan Hupp, a gamer who lives in Philadelphia, Pennsylvania. As 
Hupp explained to Polygon, Hupp purchased The Evil Within 2 for the PlayStation 
4 in anticipation of buying the console, but later decided he would rather 
spend his money on PC gaming upgrades. So, he never bought a PS4, and as most 
people in his situation would do, he tried to sell The Evil Within 2.

The game had never been opened, let alone played, and was still sealed in its 
original shrink wrap. Nevertheless, Bethesda, through its legal firm Vorys, 
sent a threatening letter to Hupp demanding that he take down the item from 
Amazon or face legal action.

“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,” the letter 

Bethesda's legal firm also made clear that it would seek "disgorgement of 
profits, compensatory damages, attorneys’ fees and investigative and other 
costs." For an individual seller who is just trying to recoup some of the money 
he spent on a game he is unable to play, that is pretty intimidating, and so he 

Here is the thing though, selling used games is not illegal. It is protected 
under what is called the First Sale Doctrine, just the same as selling used 
books and DVDs. As long as the copyrighted material has not been significantly 
changed and is not a copy (liked a burned DVD, for example), it can legally be 
sold. GameStop has made a business out of this.

"The first sale doctrine, codified at 17 U.S.C. § 109, provides that an 
individual who knowingly purchases a copy of a copyrighted work from the 
copyright holder receives the right to sell, display or otherwise dispose of 
that particular copy, notwithstanding the interests of the copyright owner," 
the First Sale Doctrine states.

Bethesda's way of trying to get around appears to be the lack of a transferable 
warranty. In the letter sent to Hupp, Vorys argues that Hupp's sale falls 
outside the confines of the First Sale Doctrine because without a transferable 
warranty, it is "materially different from genuine products" sold through 
official channels.

We are not a law firm, but it is hard to imagine the argument standing up in 
court, at least in this specific case and similar ones involving individual 
sellers (if in fact everything went down as Hupp claims). It hardly matters 
until someone has the wherewithal to defend against it though. Otherwise, the 
same argument could applied to virtually all used game sales, ending the 
practice entirely. That said, we don’t know Bethesda’s side of the story, so 
there could be more to this.
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