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 Wired.com. "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."