Bethesda Blocks Resale of Unopened, Second-Hand Game

A gamer who tried to sell an unopened copy of The Evil Within 2 said Bethesda demanded he remove his Amazon listing under threat of a lawsuit.

Ryan Hupp, the would-be seller of the game, contacted Polygon with evidence of communications between him and Bethesda that showed the publisher taking issue with his plan to resell the game. Hupp received a letter from Bethasda's legal firm Vorys, Polygon reported, that said he had to take down his Amazon listing or be subject to legal action.

The copy of The Evil Within 2 was unopened and unused, but Bethesda said that this didn't qualify the game as "new." Bethesda's legal correspondence with Hupp said that the claim that the game was "new" fit the bill for "false advertising" despite Hupp saying that he'd never even unwrapped the game after purchasing it.

Hupp ultimately took down the listing, but not without a reply to Bethesda that said he believed he was in the right to resell the game under U.S. law while citing the First Sale Doctrine. Bethesda countered this by saying that because he's reselling the game, it doesn't have a warranty, a difference that makes it "materially different from genuine products."

As Polygon pointed out, the insinuation that Hupp's sale isn't protected by this doctrine brings the reselling of any game into question, a slippery slope that starts with Hupp's Amazon listing and doesn't have a clear end. It's unclear why Hupp was singled out for his listing, but Bethesda said that if he didn't remove all of his Bethesda products that he had on the marketplace, he'd face legal action.

"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," Bethesda's letter read.

Explaining what the publisher would seek to gain through the lawsuit, Bethesda mentioned "disgorgement of profits, compensatory damages, attorneys' fees and investigative and other costs" as the compensation that it'd be seeking.

Neither Bethesda, Vorys, nor Amazon responded to Polygon's requests for comments, but Hupp did add in an email statement that he understands Bethesda's legal logic but called the action a "massive overreach."

"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."