UPDATE: Lawyer Mark Methenitis speaks on the matter, implies that it may be a state issue.
There are many things that I cannot stand about GameStop. In fact, back in August I wrote an open letter to GameStop where I expressed my distaste for their company and many of their policies. However, the one policy that I have never really gotten myself all wound up about is the check-out policy that goes all the way back to the days of Babbages, Software Etc. and FuncoLand.
For those of you who have no idea what I’m talking about, I’ll explain rather quickly: Employees at GameStop can essentially rent a game from the store. Employees aren’t allowed to check-out a game that hasn’t already been “gutted” (where the store opens the game to put the case on display) and when the game is returned they are sleeved and returned with the rest of the display copy games.
This practice has been going on for over a decade and GameStop has made no effort to try and hide the business practice.
Yet the policy now finds itself under heavy scrutiny because superblog Kotaku wrote about how the practice may be illegal.
I consider this to be an early front runner for the biggest non-news story of 2009.
Kotaku’s ‘Big Story’
The first thought I had reading the piece was that Brian Crecente needs to find another serious news gig because he’s starting to get sloppy. The entire story has absolutely zero concrete fact in it pertaining to the legality of GameStop’s practice of selling “check-out” games as “new”. In fact, other than a description of how the “check-out” policy works, all you have is a couple of “no comments” from GameStop and the FTC.
Yes, the FTC. Kotaku actually thought they would get a statement out of the Federal Trade Commission, the federal body that promotes consumer protection. While Crecente states in his piece that FTC Public Affairs Specialist Betsy Lordan was “unable to confirm or deny” any potential investigation, I have a feeling that Lordan was simply trying to brush him off.
What is left in the Kotaku piece is little more than speculation regarding the legality of marking these “check-out” games as $60 rather than $55. Of course, this could be overlooked if the “news” they broke was actually news. Instead, as they’re prone to do, Kotaku smacks the hornet’s nest with a stick to drive traffic on an otherwise slow news cycle.
So, Let’s Speak “Legalese”…
But what of the policy itself? Could GameStop be held liable for selling checked-out games as “new”? Could GameStop be held liable for simply opening the game cases? Thankfully J.W. has a lawyer friend who practices this stuff. I emailed him the link to the Kotaku story and asked him if there was a case to be made. His answer?
Yes and no.
GameStop is not legally in the wrong for opening games and selling them as new. While you can morally object all you like, on legal grounds there is simply not a case to be made that any game opened by GameStop is necessarily used. This is due to the fact that GameStop doesn’t hide the fact that they open some games to use the cases for display purposes.
However, you could make a case that GameStop is engaging in false advertising by marking games played by employees as “new”. But what would happen if this case were brought before the Federal Trade Commission?
In short: Not much. Odds are the FTC would contact GameStop and tell them to amend their check-out policy so that games that were taken by employees were listed as “used” when they were returned. The only way GameStop would face any financial or legal punishment from the FTC is if GameStop willingly and fully ignored the Commission’s warning.
And Finally, a Personal Note…
Personally, I’m not as outraged about this as most of you are. I certainly understand the outrage, but I do not share in it. As I see it, this is a perk for the employees and, so long as the game comes back to the store in the same condition it left in, I have no problem with it.
There is something very simple that you, the consumer, can do to avoid buying any display copies of games — look behind the counter. Most GameStops have many new, sealed games in the display case behind the check-out counter. If the game you want isn’t back there and the game you’re after is reasonably new, ask them to check in the back. Odds are that if you’re after a new game, they have a few copies in the back.
Hell, that’s what I do when I have to go to GameStop for something new.
I fully expect for you to not agree with my stance on it, and that’s fine. Again, I’m not saying you’re wrong to be mad about this practice. But it’s not new, it’s not news, and it’s certainly not as serious from a legal standing as some blogs would like you to think.
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the obvious solution to keep every one happy is simply allow 2-3 copies of the games to be gutted for display, keep it down to a few then allow those2-3 copies to be played by employees nd sell them as used.
this is good because it creates used games of just released games, some people will wait a week or two to get the game just to save $5. and then you have employees who are educated on the games they are selling so when some one wants an employees opinion on the game,they actually have one.
in short2-3 copies gutted thats all.sell as used
problem solved.
They are doing more than just selling checked out games people. They are taking used games that people trade in and are selling them off as new. I know this because I traded in a copy of the force unleashed onto which I had scratched my name into the label. Ironically, my best friend went and purchased a “new” copy of TFU and received the one with my initials ever so lightly scratched into the label. That is dirty, dirty business and is totally unacceptable in every way.
Matt,
As good as that sounds, I think there may be a problem with the idea. It screws the publishers. GameStop is already in hot water with some publishers simply because they sell used games. Selling new games as used would probably cheat the developer and publisher out of royalties and simply wouldn’t be fair. It would also make the sales of the game look lower than they are.
My two cents:
If there really is enough outrage, GameStop probably ought to think about limiting the employee check-out privilege to used games.
But as a GameStop employee myself, I can tell you that the ability to check out new games has made me a more helpful store employee. I can’t tell you how many times I’ve helped customers dodge bad-game bullets by telling them that I know from experience that the game sucks. How do I know? I took it home and played it, taking care to keep the disc and packaging in pristine condition. Everyone at my store is open and honest about this practice, and nobody seems to mind.
This is important because if a customer buys a game considered “new”, i.e., one that has not been purchased before, the game cannot be returned unless it is broken, and even then it must be replaced with the same game. I truly want people to buy games that they will love.
I’d just like to mention one other thing in GameStop’s defense: the used return policy.
No other store that I’m aware of offers cash refunds on used games. This is GameStop’s policy on returns when the customer buys a used game: If you don’t like this game, bring it back within a week. You can get your full money back if you don’t like it – or even if you beat it! And if it’s defective, bring it back within 30 days. That’s pretty darn good if you ask me.
And to all those complaining about GameStop’s trade-in values (which admittedly are not always great): Check out the trade-in values offered through Amazon and Radio Shack’s new used game program. It’s pretty sad.
The problem with that is that what’s good and bad is so subjective, and most Gamestop employees don’t tend to understand that. Besides, I’ve straight-up told my local Gamestop employees that I don’t like FPS games, only to have them turn around and try to sell me on one. They often try to sell me what they like as opposed to what they think I’ll like.
Oh, one Gamestop employee totally shat on my purchase of Metriod Prime 3, one of the few FPS-style games I actually did like. So yeah, I’m not sure that checking out games is really working for you as well as it probably should. Better to do away with it altogether and require you folks to read the internet and your Gamestop-branded Game Informer magazine for information, being that it would probably result in the same quality of customer service.
Doug,
I’m not sure how I see gutting 2-3 games per store and later selling them as used screws the publisher/developer over. The game is either way sold for the publisher new or used. It is only a problem when the game get’s repeatedly resold while the publisher/developer do not get their royalty. Basically the first time a game is sold (labeled as new or used) benefits all parties.
I don’t argue against the fact that employees benefit from this checkout policy and that eventually consumers do when recommending games. However, it is deceptive to claim a used game is new. I always assumed that games that are gutted are still new. If you can’t tell the customer: “hey this game is considered new, but might have been ‘checked’ out by another employee” then that is deceptive to hide.
I would love to see GS get slapped for this if there was a way.
Finally, yes the ability to lend a game for essentially free for one week is nice although I never used myself. Ability to exchange a defective game within 30 days just make sense, so no props there. You buy a brand new game at Walmart or Target you have 90 days! Often the games are cheaper there too negating the savings at GS for a used game!!!
And as far as gamestop goes, minus the fact that most of the employees are knowledgless twits, their trade in value is piss poor. I took 4 games to gamestop and was offered a total of $12 store credit. I walked out, took the games to Slackers and was offered $32 store credit. So what have we learned? Gamestop sucks.
Actually, for all your huffing and puffing about the shitty, shitty way in which Kotaku often “reports” news (a point that’s well made), you’re missing out on some facts of your own.
See, the issue is that Gamestop and its many faces were sued in a class-action case for allowing folks to buy and return new games, then selling those returns as new. The ruling required Gamestop et al to basically put up signage making transparent their practice of selling open-boxed items as new, on top of immediately halting the policy that allowed folks to return opened games. That essentially meant that they were to let you know that they gutted games for display purposes, yadda-yadda.
Somewhere along the way Gamestop and its ilk stopped posting that signage, but they continue to gut games for display and to allow their employees to check out those gutted copies. The issue was, as of this May, whether or not this lack of transparancy is in violation of the ruling.
It’s not so much that they do these things, but that they’re not following the letter of the ruling against them that’s the issue. I would imagine that if it’s found that they’re in violation, the most that would happen is that they’d be required to put the signage back up.