It is an interesting conundrum that game publishers face today. Many feel the used game market hurts their current game sales, especially used copies of the latest releases. Very few companies have taken more than a cursory stance on the subject. Recently though, Bethesda Softworks went a step farther with their stance on selling used copies of games. It is not pretty, and it is not good for gaming in general.

Over on the Amazon Marketplace, third party sellers can sign up and sell product. I am one such person that does this. Item access is usually controlled by the publisher or some other authority for the product in question. Mattel, Lego, Nintendo, Sony, Ford, Apple, etc can all go through official Amazon channels and block certain sellers from selling their product. What Bethesda Softworks is doing though is outside of official Amazon channels.

Vorys, the law firm representing Bethesda Softworks, is contacting sellers directly and threatening legal action over selling Bethesda Softworks releases.

One seller reached out to Polygon to break the news of his situation. Ryan Hupp received the message from Vorys and forwarded it over to the popular gaming site.

One key discussion point mentioned in the letter is “by an authorized reseller”.

This is important because that is the term that is used through official Amazon channels to tell third party sellers if they can sell the item in question.

Companies such as Bethesda can stop their games from being sold by unauthorized resellers much more easily and cheaply than going through a law firm. They can simply file the appropriate paperwork with Amazon, provide a list of authorized resellers (distributors for instance that can transfer their reselling rights to individuals) and Amazon will handle the rest.

It is interesting that Bethesda Softworks is not doing this though. They have chosen the much more discerning public eye-catching method of using lawyers.

It is interesting to note that Mr. Hupp was selling a “used” copy of The Evil Within 2 while using the word “new” in his listing.

That can raise the ire of Amazon themselves if others using the platform had spoken up about this. Amazon is very protective over their image and what is being sold there. They exert a lot of control over the products available.

The muddy waters come into play here.

According to Polygon, “Bethesda’s letter claims that Hupp’s sale is not protected by the First Sale Doctrine, because he is not selling the game in its original form, which would include a warranty.”

Bethesda went onto state the used copy is “materially different from genuine products” that official sales sources make available.

That is the key wording there that can open lots of trouble for stores like Gamestop and even the mom and pop game stores to fans simply selling on Amazon or eBay.

What is going on is simple. Bethesda Softworks knows these resellers do not have the funds to fight the challenge in court. Therefore, their only recourse is to comply.

Bethesda Softworks is building a series of legal challenges for something bigger, or for when someone does challenge their claims in court. Creating precedent before going for bigger fish. Maybe that bigger fish is mom and pop stores, maybe it is eBay, where the rules for selling are laxer than Amazon.

No matter the intended outcome, this is going to become a PR nightmare for Bethesda Softworks.

Carl Williams

It is time gaming journalism takes its rightful place as proper sources and not fanboys giving free advertising. If you wish to support writers like Carl please use the links below. https://www.paypal.me/WCW https://www.patreon.com/CarlWilliams