Polygon has been contacted by an Amazon marketplace seller who has been left dumbfounded after Bethesda served him a legal notice over putting his copy of The Evil Within 2 for sale.
Philadelphia resident Ryan Hupp told Polygon that he purchased a copy of The Evil Within 2 for PlayStation 4 but never unwrapped it as he ended up upgrading his PC instead of buying a new console. He then decided to put up his unused copy for sale on Amazon marketplace, but received a notice from legal firm Vorys, asking him to remove the listing or face consequences.
Vorys argues that Hupp was selling his unwrapped copy of the game as a “new” item, which can be deemed “false advertising” because it doesn’t come with a warranty that’s included in new games. Hupp complied with the request but pointed out in his reply to Vorys that he’s protected by the First Sale Doctrine, which allows customers to resell preowned copyrighted products as long as they’re not significantly altered. However, Vorys claims that Hupp’s listing isn’t protected by the First Sale Doctrine because the lack of warranty makes the game “materially different from genuine products” sold officially. The legal notice also called the sale “unlawful” because Hupp isn’t an “authorized reseller.”
Worth noting that retailers like GameStop do offer limited warranty on preowned games and require customers to unwrap new games when trading them in but as Polygon points out, Bethesda’s move can have implications for individuals attempting to sell their games online. The company declined Polygon’s request for comment.
Hupp said that while he understands Bethesda’s legal stance, he feels that threatening customers with lawsuits for selling something they own is a “massive overreach.”
Although Polygon only named Bethesda in its article, we wonder if the move was directed by its parent company ZeniMax, which has quite an active legal department, if its history is any indication.
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Bethesda Sends Legal Notice to Customer Over Evil Within 2 Sale Listing