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Contest: over the years, a mayor videogame reseller company that operates in many countries worldwide has made a practice to unwrap the games it sells, putting only an empty box on display. When you buy the game, the shop clerk would then pull out the actual game disk (or cartridge) and put it into the original box. As far as I know this has been described as a way to decrease shoplifting. Searching for info about this on the web seems to indicate that the practice is commonly referred as "gutting".

Anyway, having to buy "gutted" (unwrapped, open box) games annoyed many customers: pretty soon wild accusations (both with and without proof) started to appear on the web, with people claiming this is just a way to cover up more shady practices (like selling used games as new). I am not really interested into delving into such accusations.

What is more interesting though is that many people also often claim that practice is illegal, because "an open game is an used game". Sadly, people making those claims usually can not back them up, instead resorting to vague guesses like "it violates the game EULA" and such. And since I lack any professional level knowledge in the matter, I though it could be interesting to ask this question here.

So, what I am asking is simple. Can anyone think of a law, legal precedent or EULA term that would support these claims? I don't really see why this would be a thing (games don't deteriorate like food - selling an unsealed bottle of milk would probably be very different) but I can't help but wonder.

As you can see, the question is pretty open (I hope this isn't too much, I have searched the Meta site and it seemed that question like "Are there any examples of X being illegal?" should be tolerated). Feel free to both refer to any local law you may know about or common clauses in videogame license contracts that would provide ground to the claim.


EDIT: Following some comments from Paul, I was able to find some clues about why some users point at game EULA contracts as a possible ground for infringements.

Basically, it seems that many EULA (especially the ones for online games) contains some sort of clause that allows the buyer to ask for a refund - at the condition that the game is still sealed. So far I couldn't find any actual proof of this (the closest thing I could find was an EULA that stated that the game must still be sealed if it was sealed when you bought it), will try to update the question if anything new emerges.

  • "a single case / situation that would make those claims true": I've edited this to a request for a citation of applicable law or legal precedent, as that seems to be what you want. If I've misunderstood then please feel free to clarify. – Paul Johnson Feb 19 at 10:57
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    If people are claiming that its "against the EULA" then ask them to cite which bit. While legalese can be difficult to parse its not cyphertext, and the burden of proof is on the person making the claim. BTW, welcome to SE.Law. – Paul Johnson Feb 19 at 10:58
  • @PaulJohnson don't worry, that is actually pretty accurate. As I said I am not exactly an expert, so please forgive my poor writing. I know it probably sound pretty imprecise. – SPArchaeologist Feb 19 at 11:00
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    Also, violating EULA isn't necessarily illegal - while in some jurisdictions it's a somewhat binding contract (and in other's it's almost irrelevant), you can certainly argue that even in places where EULAs are enforceable, the store and its clerk aren't parties to the end user license agreement, they haven't accepted it and they don't need to accept it if they're not using the software. There may be some distribution contract between the publisher and the store that limits their actions, but that again depends on the contract and not any law. – Peteris Feb 19 at 12:26
  • @Peteris - I may have found something relevant about the EULA thing. Let me try and edit it into the question. – SPArchaeologist Feb 19 at 12:38

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