GameStop Hit With Class Action Suit Over "Deceptive" Used Game Sales

Attempts to stem used game sales at GameStop have just turned into a legal headache for the retailer who thrives on selling pre-owned video games. The company has just been hit with a lawsuit over "deceptive and misleading" sales practices.

According to a class action suit spotted by IGN, GameStop is being sued for "fraudulently, unfairly, unlawfully and deceptively [misleading]consumers at the time of their purchase to believe that the game comes with free downloadable content, when it fact, it does not." Basically, the suit is being filed over the fact that downloadable content - characters, maps, gameplay modes - are promised on the box, but are not available to second hand buyers, unbeknownst to those consumers.

The suit names games that feature prominent downloadable content designed to be used by the "original purchaser", such as Dragon Age: Origins, Battlefield: Bad Company 2 and Mass Effect 2, among others. All but one of the games mentioned in the suit are published or distributed by Electronic Arts, which is leading the charge against used game sales with its "Project Ten Dollar" initiative, which now seems more successful than ever in the fight against used game sales.

The plaintiff in the case, James Collins, argues that the problem was compounded by GameStop's limited window in which it will accept returns on games. In short, Collins felt screwed by the promise of downloadable quests, which ultimately cost him an extra $US15, and his inability to get his $US54.99 back.

A copy of the suit can be read at IGN.

GameStop Sued Over Deceptive Used Game Sales [IGN]


    Is this what the world is really coming to? Lawsuits over crap like this?

    Surely anyone with a passing interest in games knows that if you're buying a used game that any DLC stated on the cover will have been redeemed by the original owner of the game. What a surprise it's a American whining and stamping his foot about how he's gong to tell his 'mommy' on you.

    And why was he paying 55 bucks for a used game? Don't they cost 60 bucks brand new over there? That's what you get for trying to be a tightarse James Collins. Sucks to be you.


      your assuming that people have purchased these things for themselves i know friends who buy second hand games for there kids as its cheaper

      im sure theres a mother or 2 that have done the same thing for a birthday present

      and they dont know about these initiatives

      just the same as the super invasive DRM some games have

      assuming that the only people who purchase games are gamers and in turn they know enough about Project 10 dollar(i know people that didnt even know ACII needed an internet connection and there pretty hardcore gamers but they dont do community or news they just play(not everyone has a job where you can spend half the day reading various forums and whatnot)

      As for sueing them i see no problem with this Used games are a blight anyways

      55 for a used game over there that was 60 have you seen new used games in aus EB sells the game at 120 and then resells at 115 and people buy it because in the end if the disc works there using there brain not pissing 5 dollars away for no reason(unfortunatly they arent supporting the game tho just the crummy shop)

      What are you talking about? EB usually sells used, but recent, games a few dollars under the cost of a new copy here also. This is the case with all the games the suit listed.

      DLC in this form is new, so you're being a bit presumptuous in thinking people would already know DLC wouldn't be included in second-hand copies. It certainly isn't common knowledge in the general populace, nor is it in the casual gaming sector.

      Also, go to EB and check out what new release second-hand game discounts are. There is a very small difference between them.

      Your little rant just comes across needlessly elitist.

      I'm with weresmurf. Just whack on a sticker for DLC promised games. Where's the problem?

    At first I was ready to call 'shonky lawsuit' when I read it, but then I clicked over and read the paperwork.

    The guy has a legitimate complaint about Gamestops practices.

    I can't tell you the amount of times I've been into EB since November last year when DAO came out, and seen DAO, and since ME2 and BF2 came out and seen these games (even in the last 2 - 3 weeks) on the 2nd hand tables and on the 2nd hand shelves, with the 'dlc' promised on them.

    If EB, GAME, GAMETRADERS and GAMESTOP are going to insist on selling 2nd hand games, then they damn well SHOULD put a sticker on them, a disclaimer stating that 'as a 2nd hand game, any and all free dlc that may come with the game upon initial brand new purchase may not be available to the consumer as a 2nd hand purchase.' A simple, easy to understand statement. Or something to that effect.

      I believe you'll find that there is a disclaimer on the back stating the free DLC is for the original retail purchase. Caveat Emptor if you buy it second hand. The guy is a whiny douche.

        Holding my copy of ME2 right now...

        Nope. No warning.

          I was speaking about Dragon Age, so I'll concede on ME:2. Still....the guy doesn't seem to be blessed with much common sense.

    GameStop can't change what's written on the covers, and even if they could, you'd have to be an ignorant moron to believe pre-owned games come with all the benefits that are for the people who buy it brand new.

    With all these anti-piracy systems in place, it's impossible to have the extra content on more than one system anyway.

      Nah, a lot of game buyers wouldn't know diddly about how DLC works, especially since the type used by DAO, ME2 etc is quite new. It doesn't require being an ignorant moron, it just requires people who don't know the technical stuff. They do have a point: Gamestop SHOULD put a tag on these games to tell you that it won't come with the "free" DLC. But it should have been a regulatory nudge(in Australia, I think it would be) and not a lawsuit.

        But the back of the DAO case already says one time use only, only valid with full retail purchase. So ummm major fault in this entire thing. I'm assuming EA's other games say a similar thing.

      They can't change it, but what about if you're going to sell 2nd hand games and make massive markup on it like they do, quite often 60 - 70%+, putting an easy to read, simple sticker on it warning the consumer?

      I mean that's not hard to do right?

      Unfortunately being an "ignorant moron" is not against the law, however based on some resonably sound arguments the practices of GameStop just might be.

      Argued on the basis of law, it may just be resonable to argue that GameStop IS being deceptive and if so, one could also argue that it is the principle of the thing...

      Gamestop could however put sticker disclaimers on the items they re-sell, a relatively cheap option given they would put "pre-owned" stickers on them currently.

      "GameStop can’t change what’s written on the covers"
      Maybe this fool should sue the game manufacturers...

      Gamestop isn't the party advertising or promising the DLC, it's the publishers/distributors like EA. Besides, as has been pointed out, it's really not hard to see that this sort of offer is a one-use-only deal, and second-hand purchasers shouldn't expect to be able to take advantage of them.

      in what way

      I buy a 2nd hand tv i dont magically loose a channel because its 2nd hand

      same with a car

      and numerous other things

      and as for not changing the cover its simple as stated above you either put a sticker on it or Make up a Used Game copy cover that explicitly states that things are missing in the cover thats located on the shelves

      Also since when was DLC a benefit for buying it new before Project 10 dollar they all had it on them so its EA's changed the rules(As they deserve to ) and Gamestop has decided not to adjust to this change

      which of course is in gamestops intrests itd be harder to sell these second hand games if they are going to be more expensive in the long run

      the guy wont make any real money here get a refund and hopefully make them change there ways

      Gamestop/EB is quick enough to offer the $5 scratch protection and try to sell you there Edge card when making any transaction, surely a quick word about the product may be incomplete should also be in there somewhere :P

      Failing that how about a small sticker on the back for EA's Project $10 games that says "Limited DLC codes may not be included in this used game", that way they have covered themselves totally (legally). If they want to keep making the $20-30 for every used game they sell then they should put in the effort to keep up with EA's Project $10.

      I've seen stickers on the covers of used games indicating that the manual is missing. They could certainly do the same if other parts of the package are missing.

    I thought this was related to EB selling games returned in the 7 day period as "new". But even so, isn't DLC, dlc? Whether you have to pay for it when you buy it second or not it's still dlc.

    I agree with weresmurf.

    Sure DRS, they can't change the covers. But they are great at putting stickers on things! A simple sticker saying "DLC may not be available" would be enough to get them out of this mess. We are only talking about a handful of games they would have to label when they came in. Surely it isn't that hard.

    This is a legitimate case, how can anyone just say "don't be stupid, of course it's not available". That's not the case at all, GameStop are not claiming it's not, therefor it can be, who is to say it's always going to be used? Some people might sell them unused, I rarely, if ever use my codes.

    There's nothing more to it, GameStop is in the wrong. They are aware of the fact and yet are intentionally not informing customers to make sales.

    There should be a label or sign or the clerk should mention it on purchase, informing the consumer that it is a hit & miss chance.

    I hope he sues their ass off.

    This and EB games are the shadiest game retailers out there.

    This is rediculous. In one of the first paragraphs he states the following;

    "In Short, as a result of Gamestop's deceptive and misleading practices, consumers who purchase a used copy of one of these games from Gamestop unknowingly find that they must pay an additonal fee to access the FULL GAME they thought they had purchased."

    Firstly, a majority of the "consumers" "in the know" of gamestop would know that a lot of Publisher's are now follwing suit with this to make a little more dosh, it's not GameStop's fault at all.

    Secondly, paying a fee for the DLC (downloadble content) does not entail the full game. It is a "add on" as such to the game itself not the whole game.

    To summarise,that paragraph was poorly supported by actual fact. Again countless times it is said GAMESTOP are responsible for charging more and ontop off the original price, even on a second hand "used" game, its not Gamestop that charge these fee's, its the publishers of the games.

    This guy is a douche and i hope he fails in his court case. xD

    The worst thing I found with the game stores that offer the 14 day trial (if you finish a game or change your mind you can exchange it) is that they then go and sell the returned game as brand new, Even if the dlc keys have been used. So a lot of the time your buying what you think is a brand new game but in actuality is second hand.

    Just a thought I had. If you buy a game from EB and play it and reedem the DLC content, then take it back within the 7 days, whats the deal there?

      Then the person who buys the "new" game gets ripped

      I work in an EB, but can't say it's the same process in all stores, just what I enforce upon my guys. Initially I tell the customer that there's online once use codes (generally it's for PC games) and that they can't return them. I keep fairly up to date with what games/publishers use DRM and those that are DRM free, so it's just something that I know from general reading. There's no list as to what games do and don't have DRM for general staff to see.

      With this new Project $10 hoohah, if one of those games gets returned I simply ask the person if they redeemed the code, and that I'm still going to refund them the purchase amount, but I just want to know if the code is used, and thus needs to be returned as a defective product, or is still an active code. If I'm unsure as to whether or not they actually are telling the truth I send it back, but a lot of people don't give a rats arse about the free stuff that comes in there and don't use the codes anyway.

      And for my personal opinion on the court case, I think it's total rubbish. I remember reading somewhere that one of EA's reasonings behind this Project $10 was to offer the customer an incentive to buy the product as a new item, and feeding EA's wallets, as opposed to feeding the EB/Gamestop wallet. I don't think the idea of the staff telling customers the codes may not work/be included at the counter is a viable option, cause how many people are actually going to know what games come with codes apart from those that don't. Stickers are a better option, but it'd be hard to enforce.

      I think a much better idea would be to print on the games cover that when purchased as a new item, you have access to the following free content, but must be purchased as an extra when bought as a second hand game. This ensures all games that fall into this Project $10 bracket are clearly identified, and also means people would probably buy the new version of the game if the price difference is only marginal. Win - win for the publisher/ games retailer.

        "Stickers are a better option, but it’d be hard to enforce."

        Rubbish Stone, absolute rubbish.

        The markup on a game at EB, is generally 60 - 70%. A massive amount of profit is made on these games, the incursion into said profit to print up a custom black and white label indicating 'the downloadable content in this second hand game is not guaranteed to be valid upon purchase as this game is not brand new' is a responsibility that should fall solely on a company that chooses to sell a game second hand.


        Because they CHOOSE to dabble in the second hand market. I used to work for Cash Converters. I also used to work for a game retailer who used to sell second hand games, we fortunately were at the beginning of the whole 2nd hand shamozzle back around 2000, when the ps2 came out and the ps1 was phasing out, but we always bit the bullet when it came to extra costs. We didn't make the extra profit you guys do back then on games, a game back then was approximately 79.95 brand new, we would sell a 2nd hand one for 49.95 after buying it for 30. Still a profit but nowhere near the amount the current stores, not just EB, all of them, do partake in.

        If the shop wants to buy these games back, it is up to the shop to make the customer aware what is and is not available as to the contents of the product. If the product is advertising something as being available inside it, and the shop is not taking any steps to advertise this may not be so, then you're going to find you may be actually stepping into the rather heavily landmined legal territory of potentially misleading the customer.

          You misinterpret what i mean. The consistent application of stickers to the correct cases, would be hard to enforce. A lot of work is done by casual staff, and generally they won't have as great a knowledge about things like this, as I mentioned in my original post. Also, get off my back.

            Apply it to all cases then of 2nd hand games that are traded in as DLC is a standard amongst current gen games that are traded in these days Stone.

            If you can't figure out which individual cases to apply it to, then you have to apply it across the board to all games traded in. You could even alter the '2nd hand game' sticker to have this wording on it, saving the need to have a 2nd sticker. Just something to save legalities (yes I know, *you* can't dude.)

            As for 'getting off your back' you put yourself out there as an EB staffmember. When you do so, you're putting yourself up there as an example.

            I applaud you on your efforts to inform people of these cases, I've come across EB staff who do the same thing at Browns plains EB and the Brisbane city store too, its just a pity its down to the individuals knowledge and not shop policy.

            But then, to be quite frank, we are still at the infancy of DLC to again, be frank, on consoles and how we treat it/handle it on consoles, especially in the 2nd hand market, is going to be volatile for a while.

            As can be seen here in this exact situation.

            Do I think it *extreme* this guy is suiing gamestop? Hell yeah. Do I think he deserves money? Yeah. Probably the 10 extra dollars he's spent. That's it. Nothing more. It's a frivolous lawsuit if he's seeking any more than that, that's for sure. But, at the end of the day if it gets a practice changed, it'll achieve something at least.

            I just hope the judge doesn't award him any money, but the practice is changed. I hope that makes sense?

              Yeah I can understand your view. Still, putting the right stickers on the right games is harder than you'd think for a lot of people... I wouldn't have any trouble with it personally, but good lord there's a hell of a lot of people that don't have any attention to detail. And funny you should mention the stores you do, I work in Brisbane CBD... small world.

                Haha Stone it was probably you then lol. Kudos.

                But like I was saying, the sticker idea would have to go onto every game then, not just individual games. It's just an eventual thing given every game is eventually going to have some sort of online component alas... something I kinda loathe personally.

    This sounds like exactly the kind of lawsuit EA was after with their DLC policy. While they are the cause of the underlying problem, the second hand retailers are the ones who get blamed.

    And to those saying that customers should know which features won't work for second hand games, it isn't always clear. Some games include content previously distributed as DLC on disc but isn't tied to the first purchaser. How is a customer meant to tell the difference between this and the problem content this lawsuit is about?

    The guy suing does have a point. They should have signs or something up, saying that the DLC is not included.

    I think a win for him is viable.

    LOL at him including BC2... i mean it JUST came out. So he has already bought it second-hand eh?

    Good luck on winning i say... not saying i'm on Gamestop's side! Quite opposite really, i think their second-hand selling is disgusting at EB Games, even GAME for that matter.

    But some people will sue for anything!

      Seriously dude, I saw copies of BC2 2nd hand a week after it came out. No joke.

    The funny thing is in 1 month, there will be legitimate reason to sue, since the free DLC codes with Dragon Age Origins expire in April - meaning new buyers will also have to fork out for the DLC (I dunno if the other Project $10 games also have limited activation timespans, but its a major concern)

    As somebody who buys alot of games, knows alot of people that buy games, and works at a videogame retailer here in Australia, let me tell you that almost everybody understands that second hand is... well second hand and that any promotional codes will probably already have been used.

    While this is the case, there are some customers such as parents or game illiterate people purchasing for perhaps the first time who do not understand these things. I think there should be some sort of disclaimer on pre-owned boxes for games to let the customer know that any promotional DLC codes may not work BUT the problem then is being able to split up the games with codes and the games which don't have codes in the box. Not everybody that puts the games on the shelf knows if a game has codes in the box or not.

      Like I said before Jesse, maybe altering the price tag to include this, or adding a small black and white sticker to the actual box, including the words 'this 2nd hand game may include DLC promotional material that may be invalid as it is a 2nd hand game' or words to that effect. When you can't seperate them, you do a blanket effect. Mark every game. It's easy. Given how small the stickers would be, and how many small stickers can be done on a few sheets of A4 paper, it'd be cost effective and a simple way to avoid such an issue.

    For all you idiots saying "Oh yes, Gamestop should be doing this and that and the other and it's soooo deceptive", have a look at the actual game:

    Quote: "one time use code available with full retail purchase". This guy is a whiner, and you are validating his stupidity.

    First it was war on pirated games taking money away from the industry, now it's war on second hand games by releasing an incomplete or inferior product and then selling the "bonus extras" for cash. How can they defend this with anything but being greedy? Remember when alternate costumes for characters in a fighting game were unlocked by achievements or codes? Now you have to buy them.

    The second hand game sales is so severely one sided against the consumer as it is already. Trade in the game you spent $70 on last week for maybe $20-$30 store credit at the same store and they will resell the game for $65 with less content. Of course people who read Kotaku know about DLC and the pitfalls of buying games second hand, don't you think Kotaku readers would be in the minority of the general gaming populace?

    At least it's not as bad as forcing people to re-register (for a price to the developer) a second hand game before it can be played. Hearing about that convinced me that there are better hobbies than feeding the pockets of money hungry game developers and investors.

    Customer - "This promotional code has already been used. I wasn't aware that with a preowned copy I would be unable to redeem that code and access the content."

    Retailer - "Did you purchase the game within the last seven days, as our exchange policy dictates?"

    Customer - "No, for (reason), I am (8-10/reasonable period) since purchase."

    Retailer - "It is our policy to only exchange within seven days, but I tell you what - if you're happy to pay the difference, I'll switch this one out for a new copy for you to help you out. How's that sound?"

    Customer - "That sounds ideal, and you know what? I'm not even going to sue you today."

    I work full time in games retail, and I really can't see how this situation was not resolved on the spot. A little customer service goes a long way.

      Common sense Tek, it goes a long way, but one must ask if the customer himself would've been willing to do that too...

    This is REALLY tight fisted man. Imagine buying a used copy of Adobe CS and having to pay again for past updates ?

    Counter sue saying the publisher never provided information on packaging warning second hand purchasers DLC costs extra. I'm looking at my "original" copy of Bad Company 2 and it says nothing about resale costs. It does tell me when the single use code expires...April 1st...That's hilarious...This is a very cunning move by video game publishers but if American creativity in regards to law suits is any indication, a move that will eventually backfire.

    This will also hamper my ability to resell an item that I legally purchased. Resale should include my DLC as included under "intellectual property" meaning the original purchase included free DLC which I used and enjoyed and should be available at resale. Intellectual property rights are usually limited to non-rival goods, that is, goods which can be used or enjoyed by many people simultaneously (multiplayer DLC) — the use by one person does not exclude use by another.

    "October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's the wheat he cultivates, or the flocks he rears."

    Put that in your pipe and smoke it EA..LOL..

    This comment was intended as parody and should be in no way, terms or conditions justification for a legal proceeding.

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