Attorney Mark Methenitis on GameStop-OnLive Fiasco

Wired's Game | Life taps into the legal expertise of attorney Mark Methenitis to determine if GameStop might face legal action for removing OnLive coupons from PC retail boxed copies of Deus Ex: Human Revolution.

Naturally there may be some unforeseen issues at play here that could affect whether Square Enix could sue the top games retailer – like if both companies have an existing agreement or contract that bars Square Enix from including deals from GameStop's direct competitors. That's doubtful considering that GameStop allows games that include Steamworks or the Steam Client on disc.  Steam is clearly a direct competitor to GameStop's Impulse digital distribution platform. Here's what Methenitis thinks about that:

"Existing contracts between GameStop and Square may have barred this kind of promotion, and so GameStop may actually be justified in their action if Square is in breach of some promotion/marketing agreement."

Methenitis also said that GameStop's actions related to OnLive probably did not violate consumers' rights, and even though consumers could sue the company for "deceptive trade practices or fraudulent advertising," they wouldn't have much of a case because the coupon wasn't advertised on the game's packaging.

Methenitis closes by saying that some of GameStop’s policies might have violated Federal Trade Commission policy. One in particular is an employee "rental plan" that lets employees rent brand new games. The problem is that these "rented titles" are brought back to the store and sold as "new" products for full price. This practice has been going on for several years and was the subject of a class action lawsuit against the company which inevitably failed.

Game|Life contacted the Federal Trade Commission for comment and got the following response:

"The FTC Act prohibits unfair and deceptive business practices," an FTC representative told "So if a company misrepresents that a product is new and doesn’t make adequate disclosures that it has been open or used, then that could be considered deceptive."

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  1. 0
    Neeneko says:

    I guess as long as they are not altering known/advertised features, it is probably legal.

    Though now I am wondering what kind of case would exist if GameStop had altered something deeper then a cupon… say, the game itself.. remove a few levels and require you to buy alternate versions from their content group.

  2. 0
    Grif says:

    Yes. It is perfectly legal. "New" does not necessarily constitute "sealed". And what the article doesn't mention is that Gamestop does not permit employees from checking out PC titles, due to DRM concerns.

  3. 0
    Grif says:

    If you were talking about the OLD version of the GOTY, then Gamestop employees simply don't use the code. The new versions of GOTY either have the DLC built into the game disc (PS3) or on a seperate disc (Xbox 360).

    If you knew how crappy Gamestop treats all their employees that are below an ASM, you probably wouldn't complain about the check-out program. Here's a few fun facts to help.

    Fun fact #1: The single most common question asked of any Gamestop employee is "Is (insert game name here) any good? Gamestop employees are obviously expected to own every single game ever released.

    Fun fact #2: Despite popular opinion, Gamestop employees do NOT get to play games before their street date. The exception to this, obviously, are the stupid-ass managers who break street date simply because they think they can and that nobody will find out.

    Fun fact #2.5: They always find out, sooner or later, and are subsequently fired.

    Fun fact #3 (More of a suggestion): If you're really that concerned about getting a sealed copy of a game, then ask for one. If they don't have one, GO SOMEWHERE ELSE. I used to be one of those of the mind that a game is somehow tainted if someone else had played it before me. It wasn't until AFTER I had worked for Gamestop that I realized how much of a pretentious douchebag I was.

    Fun fact #4 (As stated in the shoutbox): Many Gamestop stores have shrink wrap machines. If all it took to get you to shut up about it is shrink wrap the game before it's sold to you, you'd be none the wiser.

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