Wow, this seems to be taking a piss all over the first sale doctrine if this article is not somehow playing fast and loose with the facts. Seems like an open and shut case for somebody like the EFF to take on, with some great press for themselves in the process. Feels like there has to be some piece of the story missing here.
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. The letter says this lack of warranty renders the game “materially different from genuine products” that are sold through official channels.
IANAL, but it seems to me that if this argument goes through, it would render first sale doctrine useless, as you could tack on a warranty to just about any old product.
Warranties for software are notoriously narrowly scoped. Not warranted for any particular use or fitness for any purpose, etc. About all they will warrant is that the media itself works and offer to replace it if it doesn't.
So just warrant that what you are selling is what it claims to be and offer a refund or replacement if it isn't. That seems to be materially the same as what the original seller provides.
I've dealt with tp-link myself and they are extremely abusive, they ignored anything I sent them including a letter from a lawyer, and filed dozens of false complaints against me. I hope they lose that case and have to pay a large judgement.
> Bethesda recently sent out a notice to at least one seller on Amazon’s Marketplace who was trying to sell a sealed copy of The Evil Within 2, demanding that they remove their listing.
This could be an attempt by Bethesda to rein-in what they see as "counterfeit" products, since Amazon is largely unwilling to police their own Marketplace. Though the article states "Bethesda is a notoriously litigious company", and have a heavy-handed history.
They could actually be charged with perjury if they are using the DMCA to take down listings that they have no proof are counterfeit and turn out not to be. Though I am not sure if DMCA applies in this case.
I expect Fallout 76 to be a Day Z-ish shell of a proper Fallout title, but I'm excited about ES6!
Inb4 voiced main character, forcing smaller range of dialogue and story options and limiting roleplayability, and those five voice actors behind every NPC, etc. etc. :3 Cinematicness!
I think it's worth considering if we should support a company who carries out these kinds of intimidation tactics against its player and fan base.
I get it, their games are good - perhaps even one-of-a-kind - but much like Uber and Riot, perhaps even with their great service they aren't worth supporting.
For quite a while now, their games have only been made "good" after significant time and effort by the modding community to fix common game-breaking and progress-losing bugs, along with endless quality of life improvements and the fixing of console-port-related issues.
"Vanilla" Bethesda games are pretty bad by reasonable standards, particularly on and shortly after launch.
Same, I just picked it up in the Steam sale, and it's what I wanted out of Doom 3 fourteen years ago. I feel conflicted that I just gave $10 to Bethesda while they are pulling this stunt, but it's a great game nonetheless.
If this expansion gets to and is upheld by the courts, it makes me wonder about DVDs and Blu-rays people sell with either now expired or previously used digital codes and whether this would be subject to the same "material difference."
Nothing to do with them then, it's not their product you're reselling as it's "materially different" - oh right, so for copyright purposes it's an exact copy, but for any natural rights the consumer should have it's a different product.
This sort of evil should be stamped on hard by government.
You mean the same government that is currently controlled by corporations and doing everything it can to maximize corporate profits? Yeah, good luck with that.
Can Blu-Rays be manufactured to make each disc unique, with an embedded code that is used to link a license of the game to an account?
Then the publisher could simply decide to disallow games from being activated on another account.
Or, bundle a CDKey inside the case, but I think this exposes significant fraud risk if a rogue employee cracks open hundreds of cases from a shipment, sells the keys online, then reseals them.
Combine your first idea with your second and you may be on to something. A uniquely encoded disc that must pair with the printed CD key in the case. Kind of a public/private key thing, I guess? Crypto isn't my area of expertise so I have no idea if that is feasible.
I believe this was how the XBox One was originally going to work, but the outcry was so loud that Microsoft had to backtrack before the console was launched.
A particular criticism was that you would not be able to play any games without internet access, which would have made it useless for many people, including for example some military personnel deployed overseas.
Its just a matter of time before that happens. How many gamers who aren't on a plane, in a train or in a base in Fallujah don't have constant broadband access?
I think those instances are being reduced yearly all around the world.
The next generation of consoles will have a low-end version that hosts some of the calculations locally, such as input and collision detection, but all of the detailed rendering etc. on the cloud. All games will be inherently 'online only', distribution of optical disks will become pointless and everything will be linked to an account - no resale.
Why should this be allowed. First sale doctrine wasn't made because it was technically infeasible to enforce controls on reselling. It was made because we decided as a society that once someone sells something to you, they don't have control over it anymore.
This push to let every company both eat their cake and have it to, when it comes to selling their products but maintaining control over them, is just turning our society into a sort of serfdom again
A huge amount of games these days are sold as just CDkeys in a box so all of those pesky physical media concerns fall away. You're blocked from reselling them, they're leaden with DRM and the copyright owners are happy.
At least until Steam decides to stop hosting a popular game. Then the outcry will be real and people will decide that they own what they buy law be damned.
Which is why Steam would never do that. All they're doing is hosting a few gigabytes of files on their CDN. Why would they ever voluntarily remove a game unless it had broken some kind of law?
Even games that were removed from Steam like Hatred could still be downloaded by people who had already bought it.
I think you overestimate how much people are interested in their old games. People just want to move on to the latest and greatest hit.
This is an interesting legal move: using a warranty to claim that a resold good is 'materially different' from an original, and therefore is not subject to first sale doctrine. If it held up in court, it seems extremely dangerous for consumer rights.
How is that different from selling a used car that's no longer under warranty? If this ever gets litigated, is a court likely to make a decision that undermines the U.S. used car market? Or is the company hoping that it can intimidate sellers into backing down without ever having to go to court?
I suppose that it would be stupid for car manufacturers to attempt to put restrictions on resale, since that would significantly reduce the value of a car. But the same thing could happen to games: if someone knows that they can't resell a game if they get tired of playing it, they'd be somewhat less likely to buy it in the first place (or not be willing to spend as much for it).
Warranty is used to get around first sale rights for trademarks, not copyrights. The argument is the trademark can no longer be used if the goods are "materially different", such as by not having a warranty.
Wont stand up in court. This is about trademarks ... ie "Ford" or "BMW". Such a ruling would kill the entire used car industry. Not going to happen anytime soon.
You may not be able to afford an attorney willing or able to face down David Boies or whatever landshark the publisher suing you hired. Settling may be your only feasible option.
Let’s say you run a small business making 250k/year. If you sue, it will distract you enough that you’ll likely make 100k less over the 2 years it takes. Also, the suit will cost you 50k and that won’t be recoverable even if you win. If you do win, you recover 25k in damages.
All of these numbers are plausible and demonstrate how skewed the decision to sue must be. I’ve been quoted 50k by an IP lawyer as the estimated cost to take something like this to trial, and they thought I might not win if the company is able to claim my sales aren’t covered by warranty.
Did they notify consumers that they were bundling a warranty, sounds like all the purchasers should be due a partial refund and any people with damaged discs should get replacements, under their warranty.
And no mention of a warranty on their main website either.
The amazon store page says that for warranty information, you can contact the seller (which would be amazon, and presumably amazon's warranty) or that more information may be available on the manufacturer's website (and the above links demonstrate that it isn't).
So yeah, my question is "Does anybody know about the warranty, and if not, how is a warranty that you don't know about materially different from not having one?"
Vorys is corrupt. I've received threatening letters from them as well, that came to my physical address despite it not being listed anywhere on my Amazon store. It also contained false assertions (I'd bought the goods in question from an authorized distributor that confirmed to me that the letter was simply lying).
I know multiple other sellers that also had this issue. It is my belief that Vorys is illegally paying Amazon insiders to get contact information for sellers, as there is no legitimate path to get that information that does not involve a subpoena to Amazon, which would involve an active lawsuit. Unfortunately, this is hard to prove.
In general, companies can be extremely abusive if they don't want their stuff being sold online. I know multiple people who have bought directly from companies, and later had the company claim to Amazon that they were infringing IP. The listing goes down, sometimes the entire account as well, till you send in invoices and convince Amazon to accept them and reinstate the listing, which takes time.
I wonder if this is more of a Bethesda initiative or a law firm initiative. Is Bethesda aware that bad PR these days can cripple your launches? Are they really risking an increase in "revenge piracy" or loss of sales just for a marginal reduction in "losses" from these Amazon sellers?
People who buy used games don't want to pay the new price, and they won't. One way or another they'll get it for the discounted price. It's best if you don't alienate your customers for something that will bring no palpable benefit.
It's the law firm. They go out and pitch brands on using this to control distribution.
See https://markettrack.com/wp-content/uploads/2016/08/Vorys-and..., which pitches brands on creating bogus "warranties" so they then have a flimsy legal basis to threaten sellers with. Most sellers, even businesses, will fold out of fear and want to avoid a lawsuit, so these claims aren't often tested in court.
Also, to be fair, this case was someone selling as new. The game was sealed, but it does cut down on their own sales.
I know people who'll go to e.g. bestbuy, buy games using launch discounts or clearance, etc, then sell on Amazon. Perfectly legitimate business model in my view.
"People who buy used games don't want to pay the new price, and they won't"
They will once physical disks are abolished for digital stores. They have been pushing this for years and PC gaming is already there. No more used games.
I wonder if people will just create a different account for every game and just sell the account :D.
And I don't see PC games being any different than console ones. Most games still have physical copies that can be resold, or am I missing what you meant? Physical copies still have plenty of life in them with games ballooning to triple digit GBs and most of the world being stuck on slow internet.
Many PC physical games have been Steam keys in a box for a long time. Sometimes they come with a disk with the Steam installer for the release version but it has DRM to prevent running it without activation on a specific account, so it only really saves on download time for a couple of months until patches are as large as just downloading the game anew.
In recent years, there's a been few more cases of Origin/uplay/etc. keys in the box instead, but the same limitation applies.
I think they're acting on that message, in a different way, though.
The retail model was always space constrained. They have to take Oblivion off the shelves eventually to make room for Skyrim. That created a window where you had to buy now or you have no choice but used.
Digital shops have no such limit, so they can just keep all product on a gradual downward pricing spiral. And the buyers can just wait forever until their personal threshold is reached.
Now, the interesting side of it is what effect resale has on people's price thresholds: do buyers price the trade-in value of the game into their purchase decisions?
I could see someone saying "I'm willing to buy the $60 PlayStation disc I can trade back for $20 when done, but the corresponding PC version (with no resale option) has to be $40 to provide the same value for money" Maybe not consciously, though.
Even with legitimate invoices it is hit or miss and extremely difficult if not impossible to get reinstated.
You can provide exactly what they are asking for, and the Amazon drone employees on the other end will simply deny you with no explanation and then resend you the same form email asking for the exact same thing.
In fact, sometimes sending valid invoices will get denied and then sending the exact same invoices again, it will sometimes be accepted.
Companies will also have employees go in and buy the products and then complain that they are counterfeit. And Amazon believes them 100% by default.
Yes, agreed, seen that multiple times. I have one case where the company refiled the same claim dozens of times, I kept providing the exact same invoice each time, but only got accepted maybe half the time or so.
In general, the "cleaner" the invoice is, the higher the odds of being accepted. Although they recently tightened requirements, see https://www.webretailer.com/lean-commerce/amazon-invoice-ver... (in particular, notice the insistence that suppliers have a website).
I find it interesting that whenever the topic comes up on HN, everyone complains about Amazon being too easy to sell counterfeits on, while whenever I talk to sellers that sell legitimate product, they're getting hit with these issues and think the exact opposite.
Is it possible that they reverse engineered your business information by whatever information you have available on your storefront? Phone number, business name if you also have other marketplaces like ebay, or your own website, etc. It's pretty easy to figure stuff out once they have a business entity.
On the other hand, maybe Vorys was able to get the information by threatening Amazon with a lawsuit?
No. Storefront is not connected to business name at all. And I'm not the only one this happened to. It also had parts of my name that isn't connected to my business in public records, but which were provided to Amazon.
I don't know for sure, just a strong suspicion. It's possible but very unlikely that Amazon would provide that info through official channels without even a complaint being filed through Amazon. I know others who've sued to get counterfeiters off their private label products and it's hard to get info out of Amazon even in a lawsuit, let alone without one.
Software is licensed, not sold. Generally speaking if the license indicates it's nontransferable (which it almost always does), the software is not subject to first-sale doctrine and is illegal to sell.
If I just buy a copy of a game from a physical store and I don't sign a licensing agreement, it's hard to see how that would pass the test here- he never even opened the jewel case.
63 comments
[ 4.3 ms ] story [ 136 ms ] threadBethesda’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. The letter says this lack of warranty renders the game “materially different from genuine products” that are sold through official channels.
IANAL, but it seems to me that if this argument goes through, it would render first sale doctrine useless, as you could tack on a warranty to just about any old product.
I've received letters from lawyers about the re-sale of physical products being illegal because of the lack of the original warranty.
It didn't seem to have teeth at the time but it sure scared me.
So just warrant that what you are selling is what it claims to be and offer a refund or replacement if it isn't. That seems to be materially the same as what the original seller provides.
Here's somebody suing over similar claims from tp-link https://www.courtlistener.com/docket/6846972/starke-v-tp-lin...
I've dealt with tp-link myself and they are extremely abusive, they ignored anything I sent them including a letter from a lawyer, and filed dozens of false complaints against me. I hope they lose that case and have to pay a large judgement.
I'm sure they'd accept help from the EFF if it was offered.
This could be an attempt by Bethesda to rein-in what they see as "counterfeit" products, since Amazon is largely unwilling to police their own Marketplace. Though the article states "Bethesda is a notoriously litigious company", and have a heavy-handed history.
Inb4 voiced main character, forcing smaller range of dialogue and story options and limiting roleplayability, and those five voice actors behind every NPC, etc. etc. :3 Cinematicness!
I get it, their games are good - perhaps even one-of-a-kind - but much like Uber and Riot, perhaps even with their great service they aren't worth supporting.
Just an observation.
"Vanilla" Bethesda games are pretty bad by reasonable standards, particularly on and shortly after launch.
This sort of evil should be stamped on hard by government.
Then the publisher could simply decide to disallow games from being activated on another account.
Or, bundle a CDKey inside the case, but I think this exposes significant fraud risk if a rogue employee cracks open hundreds of cases from a shipment, sells the keys online, then reseals them.
A particular criticism was that you would not be able to play any games without internet access, which would have made it useless for many people, including for example some military personnel deployed overseas.
I think those instances are being reduced yearly all around the world.
The next generation of consoles will have a low-end version that hosts some of the calculations locally, such as input and collision detection, but all of the detailed rendering etc. on the cloud. All games will be inherently 'online only', distribution of optical disks will become pointless and everything will be linked to an account - no resale.
This push to let every company both eat their cake and have it to, when it comes to selling their products but maintaining control over them, is just turning our society into a sort of serfdom again
Even games that were removed from Steam like Hatred could still be downloaded by people who had already bought it.
I think you overestimate how much people are interested in their old games. People just want to move on to the latest and greatest hit.
Because they're bankrupt. Which they will eventually be, the only question is when.
I suppose that it would be stupid for car manufacturers to attempt to put restrictions on resale, since that would significantly reduce the value of a car. But the same thing could happen to games: if someone knows that they can't resell a game if they get tired of playing it, they'd be somewhat less likely to buy it in the first place (or not be willing to spend as much for it).
All of these numbers are plausible and demonstrate how skewed the decision to sue must be. I’ve been quoted 50k by an IP lawyer as the estimated cost to take something like this to trial, and they thought I might not win if the company is able to claim my sales aren’t covered by warranty.
There's no mention of a warranty on the Evil Within 2 support page
https://bethesda.net/en/search?q=warranty
And no mention of a warranty on their main website either.
The amazon store page says that for warranty information, you can contact the seller (which would be amazon, and presumably amazon's warranty) or that more information may be available on the manufacturer's website (and the above links demonstrate that it isn't).
So yeah, my question is "Does anybody know about the warranty, and if not, how is a warranty that you don't know about materially different from not having one?"
I know multiple other sellers that also had this issue. It is my belief that Vorys is illegally paying Amazon insiders to get contact information for sellers, as there is no legitimate path to get that information that does not involve a subpoena to Amazon, which would involve an active lawsuit. Unfortunately, this is hard to prove.
People who buy used games don't want to pay the new price, and they won't. One way or another they'll get it for the discounted price. It's best if you don't alienate your customers for something that will bring no palpable benefit.
See https://markettrack.com/wp-content/uploads/2016/08/Vorys-and..., which pitches brands on creating bogus "warranties" so they then have a flimsy legal basis to threaten sellers with. Most sellers, even businesses, will fold out of fear and want to avoid a lawsuit, so these claims aren't often tested in court.
Also, to be fair, this case was someone selling as new. The game was sealed, but it does cut down on their own sales.
I know people who'll go to e.g. bestbuy, buy games using launch discounts or clearance, etc, then sell on Amazon. Perfectly legitimate business model in my view.
They will once physical disks are abolished for digital stores. They have been pushing this for years and PC gaming is already there. No more used games.
And I don't see PC games being any different than console ones. Most games still have physical copies that can be resold, or am I missing what you meant? Physical copies still have plenty of life in them with games ballooning to triple digit GBs and most of the world being stuck on slow internet.
In recent years, there's a been few more cases of Origin/uplay/etc. keys in the box instead, but the same limitation applies.
The retail model was always space constrained. They have to take Oblivion off the shelves eventually to make room for Skyrim. That created a window where you had to buy now or you have no choice but used.
Digital shops have no such limit, so they can just keep all product on a gradual downward pricing spiral. And the buyers can just wait forever until their personal threshold is reached.
Now, the interesting side of it is what effect resale has on people's price thresholds: do buyers price the trade-in value of the game into their purchase decisions?
I could see someone saying "I'm willing to buy the $60 PlayStation disc I can trade back for $20 when done, but the corresponding PC version (with no resale option) has to be $40 to provide the same value for money" Maybe not consciously, though.
You can provide exactly what they are asking for, and the Amazon drone employees on the other end will simply deny you with no explanation and then resend you the same form email asking for the exact same thing.
In fact, sometimes sending valid invoices will get denied and then sending the exact same invoices again, it will sometimes be accepted.
Companies will also have employees go in and buy the products and then complain that they are counterfeit. And Amazon believes them 100% by default.
In general, the "cleaner" the invoice is, the higher the odds of being accepted. Although they recently tightened requirements, see https://www.webretailer.com/lean-commerce/amazon-invoice-ver... (in particular, notice the insistence that suppliers have a website).
I find it interesting that whenever the topic comes up on HN, everyone complains about Amazon being too easy to sell counterfeits on, while whenever I talk to sellers that sell legitimate product, they're getting hit with these issues and think the exact opposite.
On the other hand, maybe Vorys was able to get the information by threatening Amazon with a lawsuit?
I don't know for sure, just a strong suspicion. It's possible but very unlikely that Amazon would provide that info through official channels without even a complaint being filed through Amazon. I know others who've sued to get counterfeiters off their private label products and it's hard to get info out of Amazon even in a lawsuit, let alone without one.
https://www.finnegan.com/en/insights/copyright-infringement-...
If I just buy a copy of a game from a physical store and I don't sign a licensing agreement, it's hard to see how that would pass the test here- he never even opened the jewel case.
Upon install, that required a Steam account, it would pull down 2x or more that of the content of the DVD to make the game playable.
And then i had to go mod hunting basically on day one, because they had implemented a non-optional head bopping on the first person camera...