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[freefornow]

MS' internal data and emails showed the probability and ability to withhold CoD. They ran those numbers internally. People from MS ran the numbers for CoD foreclosure and said the numbers looked good. I'm not sure what more the Judge wanted to show the 'probability'.

(1) has the ability to withhold Call of Duty
Yes. Microsoft is more than capable of making Call of Duty exclusive, either directly, or indirectly through GamePass subsidy.

(2) has the incentive to withhold Call of Duty from its rivals
Yes. Microsoft has the incentive to withhold Call of Duty from it's rivals. "They can spend Sony out of business". That's a long-term strategy that they undoubtedly would love to see, and they have more than capable financial means of doing so as long as the regulators play softball. Making Bethesda games exclusive is also extremely financially unsound from a P/L standpoint, given Playstation is one of their primary consumer bases, and yet they managed to do it anyway.

(3) competition would probably be substantially lessened as a result of the withholding.
Yes. Foreclosing on CoD from Playstation, either directly or indirectly through GamePass, would lessen competition because it has a seismic shift to competing third parties in the marketplace that now not only have to compete against the #1 title every year with Call of Duty, but must do so in a way where they are at significant pricing disadvantage.

So, the reasoning is all sound that the Activision aquisition is anti-competition and bad for the consumers over the long-term. Making statements under oath that cannot be held-long term since the individuals making them will be long gone is not sufficient when you have an absolute MOUNTAIN of evidence showing a consistent behavior of foreclosure, desire to foreclose, and a desire to eliminate their primary competition from the marketplace through aggressive financial means their competitors have no ability to match.

"Fifth, there are no internal documents, emails, or chats contradicting Microsoft's stated intent not to make Call of Duty exclusive to Xbox consoles. Despite the completion of extensive discovery in the FTC administrative proceeding, including production of nearly 1 million documents and 30 depositions, the FTC has not identified a single document which contradicts Microsoft's publicly-stated commitment to make Call of Duty available on PlayStation (and Nintendo Switch). (RX5056 (Carlton Report at ¶ 127.) The public commitment to keep Call of Duty multiplatform, and the absence of any documents contradicting those words, strongly suggests the combined firm probably will not withhold Call of Duty from PlayStation."

Not a single piece of evidence provided to allow Corley to rule a different way.

 

[Three]

They wouldn't have stopped proceedings against CMA if an agreement wasn't imminent. A deal has been reached already, we should be hearing about it soon.

That's a possibility and the more likely one. Obviously not the only possibility but it would be interesting to see what happens come the 18th. If they were bullshiting the courts about it being in jeopardy past that date just to get a quicker ruling.

 

[VideoGameEnjoyer]

Didn't say anything about whats worth discussing. Only that buying others is perfectly fine if proven not to be anti competitive.

'Proven' doing a lot of heavy lifting here. Those lawyers and judges didn't seem very knowledgeable about the gaming space to me.

 

[Corndog]

Oh I don't disagree. I just feel there is a bigger risk with those two than CoD. I'm sure RDR sells well, but I honestly don't believe it's anywhere near those two. Off the top of my head, which is a bit fuzzy right now, I don't even know that it would sell as well as Sony games if it was on one platform. That being said, I'd hope Sony kept existing franchises on Xbox. GTA has too much of a following to do that to people.

Rdr2 is at 53 million.

 

[Iced Arcade]

when is it 100 percent official? im hearing there is still something left.

Oh I'm sure this rollercoaster still has a few loops left.

 

[Venom Snake]

Yes Sony needs 3P, and from what we can see, even if MS wants to acquire every single publisher in this entire planet, it will take time, a lot of time actually. While MS is busy buying 1 by 1, Sony can strategize in how to live with little 3rd party support. What about funding games from new studios? Absolutely! After all, that's what these publishers are doing anyway.

Markets are not made of rubber. At some point, key decisions are made that determine the direction the company will follow for years to come.
Business models can be adjusted, but what you write about would mean a complete change of something that in the case of Sony is actually set in stone.

The level of uncertainty in a business, where a competitor forcibly and consistently deprives you of access to resources can simply make any planning impossible.
And game development takes years and doesn't always bring the expected profits, which is why companies like Sony cannot function outside the 3P ecosystem, they are not and will never be able to do so.
If it were all that simple, MS would spend its billions to create games using the studios it already owns, not buy out the common profit zone.

Because it was not only incompetence that led them to where they are now, it is also good knowledge of the market and how their competitors operate.

 

[Makoto-Yuki]

I guess the CMA will accept some basic change or a deal. Maybe no activision games on xCloud in the UK for a few years.

Could be completed by Monday.

 

[Three]

"Fifth, there are no internal documents, emails, or chats contradicting Microsoft's stated intent not to make Call of Duty exclusive to Xbox consoles. Despite the completion of extensive discovery in the FTC administrative proceeding, including production of nearly 1 million documents and 30 depositions, the FTC has not identified a single document which contradicts Microsoft's publicly-stated commitment to make Call of Duty available on PlayStation (and Nintendo Switch). (RX5056 (Carlton Report at ¶ 127.) The public commitment to keep Call of Duty multiplatform, and the absence of any documents contradicting those words, strongly suggests the combined firm probably will not withhold Call of Duty from PlayStation."

Not a single piece of evidence provided to allow Cordley to rule a different way.

There were emails read out in court about the possibility and probability being there from MS themselves in their Denali model which was the acquisition model for ABK. The judge simply brushed this aside by saying they won't care about the "shrinking console market" when their goal is mobile so they won't withhold it and that they've made a "publicly stated commitment". How many of those turned out to be nonsense?
It was the remedies that the FTC didn't accept and they weren't really obligated to. whether that works in an appeal I'm not sure but there certainly were emails modelling its removal and the possibility and probability was calculated by MS themselves to be there. They didn't model adding Switch and its effects on profit from diverted software and console sales, go figure. Wonder why?

 

[Three]

CMA wouldn't be able to defend itself in the CAT, they knew they had no leg to stand on now that ALL major regions had passed the deal in favour of MS and rejecting cloud as a dominant future of gaming. They needed the CAT trial to stop more then MS. The trial would've been set 2 weeks from now, they didn't have access to their preferred KCs, they were destroyed by the CAT for being absurd with the request for a delay over a decision they made. CMA have caved.

I see you've edited with this. ALL major regions haven't passed the deal. Why are you parroting this MS line?

Not even in the US the August hearing is still happening to try and block, unless the FTC decide to back off this isn't ALL major regions passing the deal. This is a PI denial. The CMA certainly weren't alone, the FTC and Canadian regulators are still against it along with them, this was a massive setback for the FTC though even if it was a predictable one.

 

[James Sawyer Ford]

"Fifth, there are no internal documents, emails, or chats contradicting Microsoft's stated intent not to make Call of Duty exclusive to Xbox consoles. Despite the completion of extensive discovery in the FTC administrative proceeding, including production of nearly 1 million documents and 30 depositions, the FTC has not identified a single document which contradicts Microsoft's publicly-stated commitment to make Call of Duty available on PlayStation (and Nintendo Switch). (RX5056 (Carlton Report at ¶ 127.) The public commitment to keep Call of Duty multiplatform, and the absence of any documents contradicting those words, strongly suggests the combined firm probably will not withhold Call of Duty from PlayStation."

Not a single piece of evidence provided to allow Corley to rule a different way.

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee. Gives sony enough time to make their own competitor" (meanwhile Microsoft spent almost fifteen years not being able to recreate the magic of their own IP that put them on the map)

Says it all. They were unwilling to offer a binding perpetual agreement

 

[Solidus_T]

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee"

Says it all. They were unwilling to offer a binding perpetual agreement

The biggest kick was "Sony can make a COD competitor."
Then why doesn't MS?

 

[adamsapple]

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee"

Says it all. They were unwilling to offer a binding perpetual agreement

There's no such thing as a perpetual agreement. The terms from 3 to 10 were amended to appease regulators. Not sure why some users here think they won't do that. The regulation doesn't stop after the acquisition's completion.

 

[James Sawyer Ford]

The biggest kick was "Sony can make a COD competitor."
Then why doesn't MS?

Bingo.

And as I edited in my comment

"meanwhile Microsoft spent almost fifteen years not being able to recreate the magic of their own IP that put them on the map"

 

[Lasha]

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee"

Says it all. They were unwilling to offer a binding perpetual agreement

Why would Sony be entitled to a perpetual share of Microsoft's revenue for free? 10 years is enough time for Sony to find ways to insulate against the risks of losing COD.

 

[James Sawyer Ford]

There's no such thing as a perpetual agreement. The terms from 3 to 10 were amended to appease regulators. Not sure why some users here think they won't do that. The regulation doesn't stop after the acquisition's completion.

Sure there is. Sony has one with Spider-Man

 

[Ginzeen]

MS were the ones who stopped the appeal, not the CMA. The CMA wanted a delay anyway. Not sure why. The CMA just apparently agreed to listen to any proposals but their stance may not have changed.

It would be interesting to see MS's other possible lie to judge Corley about this deal being dead if it goes past July 18th. It could be that they won't actually do anything anymore past that date or it could be that they are just trying to get their way, to speed up the process and buy up as much as they can before the market transition data becomes too obvious. I think MS themselves have put a lot of their plans on hold due to this scrutiny.

nah i think their stance has changed. No reason for them to offer them that. None at all. A CNBC reporter said its a small divesture in the UK. This saga is done and dusted. time to move on.

 

[poppabk]

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee. Gives sony enough time to make their own competitor" (meanwhile Microsoft spent almost fifteen years not being able to recreate the magic of their own IP that put them on the map)

Says it all. They were unwilling to offer a binding perpetual agreement

No reasonable person expected them to commit to a binding contract to release on playstation in perpetuity.

 

[James Sawyer Ford]

Why would Sony be entitled to a perpetual share of Microsoft's revenue for free? 10 years is enough time for Sony to find ways to insulate against the risks of losing COD.

I never said it would be free. It's not free now

What are you talking about?

 

[adamsapple]

Sure there is. Sony has one with Spider-Man

Are you talking about the movie deal? It's only perpetual in the sense that Sony are required to release movies within specific periods or they lose it. That's still a pretty big clause to it.

 

[James Sawyer Ford]

No reasonable person expected them to commit to a binding contract to release on playstation in perpetuity.

Why is that not reasonable unless Microsoft intends to foreclose?

It's not exactly a hard ask

 

[James Sawyer Ford]

Are you talking about the movie deal? It's only perpetual in the sense that Sony are required to release movies within specific periods or they lose it. That's still a pretty big clause to it.

And that's a perpetual contract

It can and does exist

 

[Solidus_T]

No reasonable person expected them to commit to a binding contract to release on playstation in perpetuity.

Do you think MS will release COD on Playstation in perpetuity?
Furthermore, did you believe Phil when he said future Bethesda games would be evaluated on a "case-by-case" basis and that the deal was not done to "take away games from Playstation?"

 

[poppabk]

Are you talking about the movie deal? It's only perpetual in the sense that Sony are required to release movies within specific periods or they lose it. That's still a pretty big clause to it.

Plus it was a colossal fuck-up on Marvel's part with hindsight.

 

[Lasha]

I never said it would be free. It's not free now

What are you talking about?

Activision assumes 100% of the risk of producing and distributing COD. Sony takes 30% of all digital revenue of COD on PS with zero risk. Microsoft will be fully responsible for producing the franchise if the acquisition closes. Why should any company be forced to guarantee the books of another in perpetuity?

 

[adamsapple]

And that's a perpetual contract

It can and does exist

But that's objectively not perpetual, perpetual would mean permanent that can never be changed. The movie deal *can* change with very specific circumstances.

We're just arguing semantics right now. I wouldn't call that a perpetual clause, but if you think it is, power to you.

 

[James Sawyer Ford]

Plus it was a colossal fuck-up on Marvel's part with hindsight.

That's irrelevant. Microsoft is trying to acquire a massive company and prove they won't foreclose to ensure competition and consumer choice

Gullible regulators seem to be taking them on their word, which is an absolute joke. These megacaps make a mockery of the regulatory system everytime they routinely go against proclamations made years ago

 

[James Sawyer Ford]

But that's objectively not perpetual, perpetual would mean permanent that can never be changed. The movie deal *can* change with very specific circumstances.

We're just arguing semantics right now. I wouldn't call that a perpetual clause, but if you think it is, power to you.

The perpetual clause is under the control of Sony, so yes that's an example of what I'm taking about

 

[James Sawyer Ford]

Activision assumes 100% of the risk of producing and distributing COD. Sony takes 30% of all digital revenue of COD on PS with zero risk. Microsoft will be fully responsible for producing the franchise if the acquisition closes. Why should any company be forced to guarantee the books of another in perpetuity?

Microsoft is still fully entitled to 70% on PlayStation like any other third party

It's not giving it away for peanuts like they would do essentially with GamePass

 

[Lasha]

Microsoft is still fully entitled to 70% on PlayStation like any other third party

It's not giving it away free like they would do essentially with GamePass

Why is Microsoft or Activision not entitled to pulling it's games from playstation and distributing through alternate channels that give it 71%-100% of the revenue of the products they create? Third parties and Microsoft don't exist to prop up Sony's revenue.

 

[poppabk]

Why is that not reasonable unless Microsoft intends to foreclose?

It's not exactly a hard ask

What if Sony switches to a mixed reality headset for their Playstation 9 while MS is still making regular 2D games? What if the PlayStation 20 is a tenth the power of the Xbox infinite or only limps along with a million units sold across the whole generation. Your own example of Spiderman movie rights was both a colossal financial fuck-up for Marvel and for us the consumers who had to sit through the Amazing Spiderman movies.

 

[James Sawyer Ford]

Why is Microsoft or Activision not entitled to pulling it's games from playstation and distributing

Because they want to gain access to PlayStation consumers in a fair environment where PS player base dominates CoD already ?

Assuming of course you believe the regulators that Microsoft has no incentive to foreclose CoD, which of course we know is completely bogus

 

[Ozzy Onya A2Z]

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee. Gives sony enough time to make their own competitor" (meanwhile Microsoft spent almost fifteen years not being able to recreate the magic of their own IP that put them on the map)

Says it all. They were unwilling to offer a binding perpetual agreement

You know the interesting part here is consumer law in the UK prevents one sided perpetuity contracts (it's called Unfair Contract Terms). Anything else is just exit clauses etc and not perpetuity. So if you're talking about CMA specifically I don't think it's even viable what you're seeking, certainly not common in business contracts to be indefinite.

Did you feel it also requires the same perpetuity for Bungie games on Xbox or PC or Nintendo? Didn't see it in your post(s).

 

[StreetsofBeige]

But that's objectively not perpetual, perpetual would mean permanent that can never be changed. The movie deal *can* change with very specific circumstances.

We're just arguing semantics right now. I wouldn't call that a perpetual clause, but if you think it is, power to you.

Deals can always be changed. Contracts included. Just got to pay the price breaking it.

As an aside, if there is a contract with zero reference to timing. It doesn't mean it's forever and a company or person has to live with it till the day they die. As long as one side gives reasonable heads up they are ending the deal or want to rework it that will suffice.

 

[James Sawyer Ford]

Did feel it requires the same perpetuity for Bungie games on Xbox or PC or Nintendo? Didn't see it in your post(s).

Bungie already has it stipulated in their contract that they have full publishing control over the platforms their games release on, and we see that being honored with Marathon

Similar to Minecraft, which Microsoft wanted to foreclose on repeatedly but couldn't

 

[Three]

Why should any company be forced to guarantee the books of another in perpetuity?

For the same reason they would be for 3 or 10yrs? Because it's a possible foreclosure of another business through acquisition and antitrust?

 

[wolffy66]

Why is that not reasonable unless Microsoft intends to foreclose?

It's not exactly a hard ask

It ridiculous to ask. Who knows whatvthe future holds 20 years from now. Forever is a long time.

 

[Iced Arcade]

Wonder how long before gamepass gets loaded up. I have to clear out some strange on the series X boii

 

[James Sawyer Ford]

It ridiculous to ask. Who knows whatvthe future holds 20 years from now. Forever is a long time.

It's not ridiculous. Contracts have stips in them all the time for future what if scenarios

 

[Ozzy Onya A2Z]

Bungie already has it stipulated in their contract that they have full publishing control over the platforms their games release on, and we see that being honored with Marathon

Similar to Minecraft, which Microsoft wanted to foreclose on repeatedly but couldn't

Yeah but that's not what you applied to MS/Xbox/ActiBliz is it? Horses for courses I think. If you think it's contractually required in perpetuity for Xbox/COD the same goes for all other acquisitions, right?

You present an ambiguous statement; force perpetuity for Xbox, allow Sony / Bungie at their discretion? You see my point.

 

[James Sawyer Ford]

Yeah but that's not what you applied to MS/Xbox/ActiBliz is it? Horses for courses I think. If you think it's contractually required in perpetuity for Xbox/COD the same goes for all other acquisitions, right?

Not all acquisitions are buying the number one third party publishers and IP in all of gaming for what is a hotly debated anti trust case due to the size/scale/ramifications

So no. Not all deals are equal. I don't know why you would think that

 

[Corndog]

The evidence is clear; shifting goalposts

"We intend to keep CoD on PlayStation"

"We'll offer three years"

"10 years is the longest we will guarantee. Gives sony enough time to make their own competitor" (meanwhile Microsoft spent almost fifteen years not being able to recreate the magic of their own IP that put them on the map)

Says it all. They were unwilling to offer a binding perpetual agreement

Did Sony sign a perpetual agreement for putting bungie games on Xbox? No. So why should Microsoft?

 

[James Sawyer Ford]

Did Sony sign a perpetual agreement for putting bungie games on Xbox? No. So why should Microsoft?

They effectively did when they relinquished all publishing control to Bungie

Bungie is 4% the size of Activision, so it's not exactly an apples to apples comparison. Sony isn't under regulatory scrutiny for that purchase

 

[StreetsofBeige]

Wonder how long before gamepass gets loaded up. I have to clear out some strange on the series X boii

If the Bethesda acquisition is an indicator, MS added 20 Bethesda games to GP the same month the deal closed.

 

[Fabieter]

How do we know that wasn't purely a financial cost-benefit decision?

You'd think if there was such a contract, it would have been mentioned at least one in the many emails and document that leaked and many of which got their own dedicated news articles and topics.

But absolutely nothing on that front.

Microsoft wanted to go to District of Colombia, FTC wanted to go to Northern California where the same court and judge was already overseeing the Gamers vs Microsoft lawsuit.

So it was FTCs ask to stay in the same place where the same judge was already working on a related case.

We got numbers that Minecraft is financially more relevant on Playstation than it is on xbox so that it's not likely.

It will be further prove once xbox will make cod exclusive in the next few years.

Anyway I hope that this case will at least have one benefit so that spencers good guy reputation is finally dropped. He isn't any better than Jim ryan.

 

[Corndog]

They effectively did when they relinquished all publishing control to Bungie

Bungie is 4% the size of Activision, so it's not exactly an apples to apples comparison. Sony isn't under regulatory scrutiny for that purchase

Did bungie sign an agreement with Microsoft? No. So same question.

 

[Lasha]

Because they want to gain access to PlayStation consumers in a fair environment where PS player base dominates CoD already ?

Assuming of course you believe the regulators that Microsoft has no incentive to foreclose CoD, which of course we know is completely bogus

What if Activision didn't want to access Sony's customers? What if Tencent bought Activision and made CoD exclusive to the new "ten box"? Would Sony also be entitled to perpetual access to content made by another company at prices and terms it dictates? You have a skewed perspective as to how a fair market operates.

 

[James Sawyer Ford]

Did bungie sign an agreement with Microsoft? No. So same question.

They didn't need to

1. It wasn't an anti trust case

2. Bungie made Sony give them full control in their contract otherwise they weren't going to sell

 

[Varteras]

Rdr2 is at 53 million.

Okay, yeah. So dividing that up for multiple platforms would still put it on the high end.

 

[TheGodfather07]

really interesting to see how sony deal with this acquisition. they didnt really respond to bethesda but this one is next level. getting activision is a megaton! sony may be on top right now but they must be seriously worried about this. whats to stop microsoft buying more big publishers and studios? sony can do fuck all about it and the regulators clearly wont get in microsofts way either. it other words sony are fucked here. if its all about money, how can they possibly compete with microsoft in that aspect? microsoft basically hold all the cards now and can own any ip they want. remove them off playstation and starve the brand of 3rd party games. crazy stuff. the next 5-10 years will be very interesting.

 

[Ozzy Onya A2Z]

Not all acquisitions are buying the number one third party publishers and IP in all of gaming for what is a hotly debated anti trust case due to the size/scale/ramifications

So no. Not all deals are equal. I don't know why you would think that

I find it interesting you pose it that way. So you see a fundamental difference between a Bungie game and say COD, you require one locked down and the other at face value? It comes across as double standards, irrespective of who or how large of a company owns what.

Also your 4% statement doesn't hold water. By that rationale you'd have ActiBliz at what 5% of MS? Same same.