According to Polygon, Philadelphia resident Ryan Hupp purchased a copy of The Evil Within 2 with the intention of later getting a PlayStation 4 to play it on. He eventually decided to upgrade his PC instead, which made the sealed PS4 copy of the game he had useless. So like many people with a game they no longer want to keep, he decided to throw it up on the Amazon Marketplace. He posted it as “new” since he hadn’t broken the seal on it yet.
After posting the listing, Hupp received a letter from Bethesda’s legal firm, Vorys. The letter threatened him to take the listing down or face legal action. Vorys stated that because Hupp was not “an authorized reseller,” reselling the copy was unlawful. They also stated Hupp posting the listing as “new” instead of “used” was false-advertising, since the resold copy no longer had the manufacturer’s warranty and could therefore not be considered new. And because the game could not be considered new, reselling the game as it was listed was not protected by the First Sale Doctrine, which enables second-hand markets for physical products like video games, including resale and rentals.
As Polygon points out, this is standard operating procedure for Vorys, who has a page on its website telling companies that only a single material difference from the genuince product the creator of the item sells is necessary to nullify the First Sale Doctrine protection, and that a material difference doesn’t have to be physical (hence the letter leaning on the lack of a manufacturer’s warranty to justify legal action).
Hupp quickly took his listing down, but isn’t too happy about it. “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,” Hupp told Polygon. “But threatening individual customers with lawsuits for selling games they own is a massive overreach.”
While it’s possible Hupp could still repost the listing and just file it as used and maybe get away with it, why risk further threatening letters and legal action? Hupp likely doesn’t have the resources to fight a lawsuit, which makes backing down his best move, even if he might have legal ground to stand on. That said, if a consumer rights organization were take the issue up in court, it could lead to some interesting legal precedent down the road. Hopefully Hupp can find someone to find a buyer for his copy of The Evil Within 2.