Potential Counter-argument for GameStop Used Game Sales
Posted by Dan on April 14, 2009Kotaku has come to the conclusion that GameStop’s sale of pre-owned games constitutes false advertising or deceptive trade practices paralleling that of Mark Methenitis of Vernon Law Group. Now, Mark’s a good guy, and it was great finally meeting him at his panel at GDC this year, but I’d like to propose a counter-argument to his research.
Mark argues that under Texas law (where his firm is based), for example, a deceptive trade practice occurs when a person “”represent[s] that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand.” One situation, however, where this is not the case, is in the auto industry. It’s very common to buy a “new car”, even from the manufacturer, and receive it with miles on the odometer. This “use” of the car, comes from transport and testing, and yet, the car is still “new” because it has never been titled before.* Similarly, in Utah, a car can be sold as “new” with up to 7500 miles on it.* And in Virginia, there can be use of the car for testing purposes and transport, and the car is still new; any other purpose and it becomes used.
A parallel can be found here in the Federal Odometer Law, which the Seventh Circuit has held to be limited to issues where the dealership or seller “intended to defraud the buyer….” There is an argument to be made here that Gamestop’s activities are no different than that of the auto industry. They’re giving their employees the opportunity to test out what they are selling, in order that they can be more knowledgeable on the subject. Is it a dispositive argument? Certainly not, and probably isn’t even going to be persuasive. But in Gamestop’s defense, it must be said that what they are doing is not at all unique, nor is it novel (this was going on when I worked at EB Games in the late 90’s), and we ought to take a step back before wildly criticizing them and ask “Why do they think this is a good idea?”
*Not sure what happened to the server, but this wasn’t a 404 when I did my research.
Popularity: 11% [?]
It actually is from our own research. As I mentioned in the article linking to Mark’s story on Kotaku, we also researched the law. (Specifically our legal intern did, he’s credited at the bottom of the original story) to see how it might pertain to the case.
I actually spoke with Mark before publishing my first story on the matter, the one that tried to nail down GameStop’s policies, to vet our original story. At the time I told him I wouldn’t be quoting him because his conclusions matched ours.
When he ran his take on the story, I linked to it and then included our own research.
Did you see that GameStop is now reviewing their policies on this?
Brian (A? or C?) Thanks for the heads up. I’ll correct the article immediately.
As for GameStop reviewing their policies, yep I saw it; that’s actually what led me to write the article.
“Why do they think this is a good idea?”
My best guess: the “check out” policy is a means to provide some measure of credibility when the kid behind the counter tells you that the game you’re about to buy is “great” or “awesome” or whatever. So if the customer challenges the clerk, the clerk can say (honestly) that yes, he has played the game, and he liked X, Y, and Z about it.
Lots of entertainment retailers – particularly music retailers – resort to puffing at the moment of purchase for some reason.
Yep, I brought up this same argument on Gamepolitics and I am now an evil traitor to consumers and the ECA. Gotta love it.
This is common in the firearm manufacture. The manufacture of the firearms will shoot a number of rounds through the firearm to a point where there are noticeable wears. The testing is done to insure the gun function property for sell. It is considered new.
This can of course lead to gun buyers thinking that the new firearm might be second handed.
Yes, but with guns and cars there are pressing safety concerns, so extensive testing is necessary. I can see both sides of this but the bottom line is if you don’t like a retailer’s practice, just don’t go. :/
Lots of other industries test each of their products before shipping to the consumers. It’s not limited to cars and guns.
I always find it silly when gamers advocate that the game industry is special and should be treated as that. Bunch of spoiled brats if you asks me.
Add A Comment