Can Bethesda stop used game sales?

Apparently Bethesda is blocking people from selling their games used

Can they actually do this or is it just a dick scare tactic?

Bethesda (Zenimax, really, I expect, although there’s no real firewall between the two entitites) seems to be relying on the legal argument as propounded by legal group of Vorys, who say that the Right of First Sale Doctrine - which says that once a product is sold, the buyer can resell it - doesn’t apply if the product is “materially different” than it was when the trademark holder sold it.

Bethesda is using the above to argue that unauthorized resellers are providing goods as “New” which, coming from unauthorized sellers, do not qualify for the warranty that Beth extends for their products bought from authorized sellers. Beth is saying that by selling a product without its warranty, the unauthorized sellers have made a material difference in its products, which means that they’re not selling the exact same product, which means that the unauthorized sellers are violating Bethesda’s trademark by selling a product that includes *some *of the material from Beth’s game, but in a new, materially different package.

Damn, that’s the ugliest sentence I’ve ever written.

I’m not sure that they’re going to prevail. There’s a very recent case in which a kid was importing textbooks from Bangladesh, where they are pennies on the dollar, and reselling them in the US, where, from authorized sellers, they are sold for stupid sums. The kid was making bank and the publishers sued him for selling texts that had “Not For Resale” or “For Sale Only In Bangladesh” stickers on them. The Supreme Court ruled for the kid that the publisher’s stickers didn’t negate the First Sale doctrine.

So - I’m not sure that this is a slam dunk for Zenimax. They may be able to stop unauthorized resellers from listing a product as new, even if the shrinkwrap is unopened (and really, anyone can put shrinkwrap on an item) but probably can’t stop resale of used games overall.

My gawd, it would be the end of eBay.

If Bethesda thought they had a real case, they’d go after GameStop not some random dude.

GameStop is an authorized seller. Bethesda/Zenimax is going after Rando Jackson here because he’s an unauthorized individual. They’re hoping that they can get a judge to agree that a) their warranty doesn’t apply to unauthorized individuals reselling their products and b) this constitutes a material difference making that unauthorized copy of Skyrim a trademark violation.

Once they have that judge’s agreement, then they’ll be in a better place to argue that it’s a trademark violation even when an authorized seller does it.

It’s a weak argument I think, because all Gamestop would have to do is stop selling opened and re-shrinkwrapped items as new (which, honestly, I’m in favor of on general principals) since everyone knows that used copies never come with an original warranty anyway and right of first sale is a bedrock of commerce in America.

IANAL, but I do pay attention to a lot of this intellectual property stuff.

I don’t see them getting around the first sale doctrine. It has been repeatedly upheld. A person can buy something and then immediately sell it. The term “new” refers to the condition of the item (unopened, in original container). Trademark infringement would only be relevant if the items were being misrepresented.

The argument about not having to provide warranty, on the other hand, seems trickier. My general understanding of software warranties is that they are provided as part of the EULA, and that all EULAs require an action beyond mere purchase to show agreement. As such, I would think that the warranty is not involved by a reseller that never opens or uses the copy.

That said, I’m not even sure you can put a resale restriction on a warranty, or if it attaches to the item itself. I mean, I do know that I have bought items that were used but still under warranty, and never had any trouble using that warranty. So I’m not sure that, even if the retail items do not count as new, it really matters. The warranty may still exist.

I do agree that you shouldn’t be able to sell a used item as new. But used means at least “opened,” and, in the case of software, means the program has been run. (Otherwise it is called “open unused” or similar.) So a retailer wouldn’t count, while someone selling their game back after they tried it and didn’t like it would. I agree that selling something as used when it is new is bad.

And, to answer the OP: no matter what about the above, I don’t think they could actually stop used sales themselves. Even if they win everything (which I think is unlikely), you’d still be able to sell a copy as used without any warranty from Bethesda. That is very much settled first-sale doctrine law.

Most software developers are going to get around the first sale doctrine by refusing to actually sell anything at all. All transactions that can be will be subscription-based service agreements, like Netflix.

Check your EULAs and TOS agreements: for the most part, none of us has bought any software in years, just paid for access to using it.

Hold on, software has a warranty? I thought most EULAs were full of language like “software is provided as is, updated at our discretion, we are not liable if it causes your computer to catch fire. Anything bad that ever happens is not our fault.”

And this is particularly rich coming from Bethesda, whose games are often unplayably broken without a suite of user-made patches.

Bolding mine.

Well, that’s what Bethesda/Zenimax is claiming, that the items being sold by the unauthorized seller are being misrepresented as “new”, even though it hasn’t been opened. Bethesda is saying that it’s only “new” when bought from Bethesda or an authorized reseller. Anything else is second or third hand, which - according to their argument - means it can’t be sold as “new”.
I agree that they won’t close First Sale down, but they might get resellers to stop listing things as new.

Here’s their explanation

They say even if it’s unopened once you buy it it’s not new

That’s not unusual. It’s standard procedure to call an item pre-owned if it’s being re-sold by a consumer. You’d call it pre-owned but never opened. If I was shopping for a game, I’d consider an “unopened” game to be the same as a brand new one so it shouldn’t be a big deal. But yes, as a consumer re-selling an item you can’t call it “new”. That applies to everything you sell, not just software.

I think that you are confusing copyright with trademark (I know that the article in the OP is). Kirtsaeng was a copyright case, applying the “first sale doctrine” of Section 109 of the Copyright Act.

This issue is about a trademark claim (which is ostensibly about transaction costs and consumer confusion). If I sell a used game, advertised as a used game, then there is no confusion of the source of the goods (i.e., me not the manufacturer). If I sell a used game as “new”, then there is going to be risk of consumer confusion (and, when it turns out that it does not have all the features of a “new” game, there is a potential problem of harm to the consumer and to the reputation of the manufacturer).

This isn’t my area, but a quick search leads me to believe that this is almost exactly the issue dealt with in Beltronics v. Midwest Inventory Distribution, 562 F.3d 1067 (10th Cir. 2009).

And here is a video by a copyright lawyer (who also knows trademark) who I watch often on YouTube.

I’ve not listened to the whole video yet, but I will argue that the product no longer being new doesn’t make sense to me, given that, if it were from an authorized resaler, it would be new, and the seller has not done anything that would trip the EULA to allow this to be modified. If the warranty still applies, as it should, then what is the material difference?

And the videos actually argues that Bethesda doesn’t provide any sort of warranty on their software, and so this entire idea that the warranty could make a difference is false. They don’t even get into my EULA argument.

Note though that this was part of a live stream on Sunday, so maybe not all the facts were in. This was more of a first response video, not his more fully researched videos.