For context the drama I’m referring to is described over in this polygon article. It’s been updated a couple of times since original publication so you may not have read the most recent version.
A brief summary however is that a firm that’s been hired by Bethesda demanded that a third-party amazon seller take down their listing for a still-sealed game that they no longer wanted and had listed as being ‘new’. The reasoning given by the firm is that they are an unauthorised seller, and thus it comes without a [manufacturer] warranty (I assume this is because the warranty only applies when bought through an authorised retailer). This, they claim, creates a material difference which means that first-sale doctrine (remembering we’re talking about the US here) does not apply. Notably they are not, as far as we can tell, going after products listed as ‘used’. Presumably because if it’s listed as used that makes clear that any manufacturer warranty likely wouldn’t apply.
Now with the background set this raises some interesting (to me) questions.
Is new an accurate description of the product in this case?
Does it being listed as new imply that it comes with a manufacturer warranty?
Should a manufacturer warranty be able to be limited to just purchases through an authorised seller; bearing in mind in this case it’s unopened unused software and thus should be in factory-perfect condition.
Let’s imagine this wasn’t a marketplace order (which afaik is never the default shown seller, but instead a formal business who can be the default seller).
Would a consumer know it’s an unauthorised seller? As it was listed on amazon, amazon might default to showing this seller depending on their Algorithms, when a consumer searches for the game. The only indication would be they ‘sold by’ tagline.
What about if this merchant uses Fulfilled by Amazon, so the seller ships goods to an amazon warehouse and then when it sells it ships from an amazon warehouse (which means Prime delivery /shipping fees for the consumer)? This seems straightforward until you remember than Amazon will commingle inventory from different sellers, including their own.
(Slight segue: what this means is that if Amazon, Seller A and Seller B all sell Widget X; Amazon will put their own inventory and inventory shipped to them by Seller A and Seller B all in the same bins. When you buy Widget X ‘sold by Seller A Shipped by Amazon’; you might get the Widget X that Seller A shipped in to amazon, or one that Seller B shipped in, or even one Amazon themselves directly received. Sellers can opt-out of commingling like this – but it involves paying amazon more money)
In this commingled case someone may have bought a copy ‘sold by Amazon’ and that will be printed on their receipt, and presumably entitled to the manufacturer warranty with Amazon being an authorised seller… but they might actually receive a copy stocked into an amazon warehouse by an unauthorised seller (who, for instance, may have bought their copies in bulk in a sale, and then listed them once the sale ended at a small markup on the sale price below the current non-sale price). Does this matter? Does it even make sense when commingling is involved to have a concept of ‘authorised sellers’?
I ask these questions because the discussion around this seems to be getting caught up in the implications for selling used copies – which is, to me, a much less interesting discussion given that this case is specifically around something being sold as ‘new’.