The firm also accused Hupp of “false advertising” for saying that the game was new. He’d already complied with the request when he replied to Bethesda’s attorneys.
Bethesda has declined to comment, and its law firm hasn’t responded to requests. From an initial look, though, its claims appear to be on shaky ground. If merely leaving out the original warranty is enough to violate First Sale Doctrine, Polygon noted, virtually any secondhand game sale could be considered illegal. The unopened status clearly played a part in Bethesda’s decision to act, but that didn’t make his resale illegal.
It’s not surprising why Bethesda might take action. Although physical game sales aren’t as strong as they used to be, there’s still a concern that thieves might sell stolen copies. However, that’s not the case here — and it also doesn’t appear that Bethesda’s lawyers asked Hupp to change the listing before threatening a lawsuit. And while the likelihood of a repeat incident isn’t very high, the threat could have a chilling effect on secondhand game sales.