Updated 8/11: This article has been updated for clarification purposes.
Used game sales have been a part of the video game industry since its inception, and they’re what companies like GameStop have built their business on. However, there have been numerous attacks on used games over the years, like the infamous online pass that attempted to force players to buy new copies, and Microsoft’s plan to block used games from working in the original version of the Xbox One. Now it seems Bethesda is trying to block used game sales, at least when it pertains to one specific seller on Amazon.
As reported by Polygon, Ryan Hupp was attempting to sell a sealed copy of the PlayStation 4 version of The Evil Within 2 through the Amazon marketplace. Hupp bought the game with the intention of playing it on a PS4 he was going to buy, but opted to upgrade his PC instead. Since his copy of The Evil Within 2 was in fact new and unsealed, he listed it as such on the Amazon marketplace, only for Bethesda’s legal firm Vorys to send him a letter demanding that he take the listing down.
“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 sent to Hupp threatened further legal action if he did not remove the listing. It stated that Hupp was not an “authorized reseller” and accused him of false advertising because he listed the product as “new.” Hupp removed the listing, though in a response to Vorys, he said that his sale of the game was protected by the First Sale Doctrine, which allows people to re-sell and lend out copyrighted works as long as they are not altered to be “materially different from those originating from the trademark owner.”
Vorys said that Hupp’s listing of The Evil Within 2 was not protected by the First Sale Doctrine since it lacks the warranty that Bethesda games have when they’re purchased new from an authorized seller, and therefore it is “materially different.” As pointed out by Polygon, this logic could technically apply to virtually all used game sales.
If a lawsuit were filed and this issue was taken to court, it could set a precedent that would effectively make selling used games illegal. Bethesda has a reputation for filing lawsuits, so if Hupp didn’t comply with its demands, it seems very possible that legal action would have been taken. However, it’s unlikely that Bethesda would have sent the letter to Hupp if he were selling the game as “used,” even though it was technically “new,” as a customer would not expect a used game to come with the same warranty as one sold from a retail store.
The Evil Within 2 is out now for PC, PS4, and Xbox One.