Bethesda has reportedly blocked the sale of a second-hand, still-sealed copy of The Evil Within 2 on the Amazon Marketplace, in a move that could have wide-ranging implications for the sale of used Bethesda games.
The seller, Ryan Hupp, received a letter from Bethesda’s legal firm, Vorys, warning that he must remove the listing or face legal action. In the letter, which Hupp forwarded to Polygon, Vorys said the sale was “unlawful” because it was not by an “authorized reseller”. Hupp’s use of the word “new” in the listing also constituted “false advertising”, Vorys claimed.
Hupp originally bought a PS4 copy of the game in anticipation of buying a console, but spent the money upgrading his PC instead. He complied with the takedown request but, in a response to Vorys, pointed out that used game sales are protected in U.S. law by the ‘First Sale Doctrine’. The doctrine allows a buyer of goods to sell on a product so long as it is not “materially different” from the original, genuine article.
However, Vorys claimed that the copy of The Evil Within 2 was not covered by the First Sale Doctrine because it did not include a warranty. That made it “materially different from genuine products”, the firm claimed.
“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 law firm said. The lawsuit would seek “disgorgement of profits, compensatory damages, attorneys’ fees and investigative and other costs”.
The initial letter Hupp received listed a phone number for sellers of Bethesda’s games to call, which could suggest that this is not the only such letter the publisher has sent out. If lack of a warranty does indeed make a used game “materially different” from the original, then it could have a big impact on the sale of used games—not just for Bethesda games, but for any other publisher that chooses to go down this route.
It should be noted, however, that multiple used copies of the game, and of other Bethesda games, are still available on the Amazon Marketplace.
When contacted by Polygon, Bethesda declined to comment, while both Amazon and Vorys did not respond.