Bethesda has garnered itself a reputation over the years as a company that works hard to maintain its reputation, sometimes doing so in extreme ways. In a new and decidedly controversial effort to maintain control over its intellectual property, the company has put legal pressure on an individual trying to re-sell his copy of The Evil Within 2.
Originally reported by Polygon, the story begins with Ryan Hupp trying to sell his unopened PS4 copy of Capcom’s survival horror game on Amazon. According to Polygon, “He’d been expecting to purchase a PlayStation 4, but instead spent his money upgrading a gaming PC.” However, once he put up his copy of the game, he was contacted by Bethesda’s legal firm Vorys to pull down the listing, as well as any other Bethesda products he had on his Amazon Marketplace page.
Hupp complied with the request but argued that under the US law of First Sales Doctrine, he should be able to sell the game, as the law allows US citizens to do what they see fit with the physical material they have purchased. As the law dictates, once the work has been sold to a US citizen “the copyright owner’s interest in the material object in which the copyrighted work is embodied is exhausted.” However, Vorys argued against this saying that as the “materiality” of the physical product was not in its original state (the legal firm argued that this was due to the game not being sold with a warranty on Amazon), Hupp was not protected under this law. Thus, if he did not comply with its demands, Vorys and Bethesda would take legal action against him.
Vorys published this argument on its website back in 2016, in an article titled ‘Three-Step Approach to Stopping Unauthorized Online Sales on eBay.’ The article states that “only a single material difference is necessary to give rise to a trademark infringement claim; and…material differences do not have to be “physical” differences.” This argument suggests that in a legal capacity, Hupp was infringing upon Bethesda’s legal rights over its games.
There is some concern that this will set a dangerous precedent for the future, as if Bethesda were to win any legal battle pertaining to this issue, it would open the floodgates for other companies to limit the resale of games. We’ll have to wait for the outcome of Bethesda’s actions to see if this will be the case.
