Bethesda has revealed why it would be taking legal action against a man reselling The Evil Within 2, after sending him a letter warning what would happen if he didn't alter his sale.
Ryan Hupp was trying to get rid of his unused, unopened game on Amazon Marketplace, but the legal team for Bethesda spotted his listing and immediately requested it's removal or alteration.
This was due to the fact Hupp, from Philadelphia, described the game as 'new' and 'not pre-owned'. It sounds harsh, but legal firm Vorys have explained why it matters so much.
In the letter sent from Bethesda, and later forwarded to Polygon, Vorys explain how Hupp is not "an authorised reseller." They also said that he was offering "a pre-owned game as 'new' on the Amazon Marketplace," which meant the post is false-advertising.
It continues: "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."
Polygon asked for an explanation from Bethesda, and they said the following: "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."
Credit: The Evil Within 2
Hupp ended up changing his post because he'd rather not have to pay "disgorgement of profits, compensatory damages, attorneys' fees and investigative and other costs.".
He did, however, still believe he was right to sell the game as new. Hupp thought he was protected by the First Sale Doctrine, which permits consumers to resell goods if they've not been significantly altered from their original form - unfortunately for him, it had.
The "First Sale Doctrine does not apply when a reseller sells a trademarked good that is materially different from the company's genuine goods." In other words - even if the game was still brand-new - he couldn't provide warranty which Bethesda could.
In a final email to Polygon, Hupp said: "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."
Was this over the top? Were Bethesda's actions correct? Let us know what you think.
Featured Image Credit: The Evil Within 2