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Can Microsoft be sued for antitrust practices if it made all the games made by the companies they acquired exclusive? Microsoft acquired so many game publishers that it makes Sony look like it might go bankrupt if it doesn't acquire a major publisher in response. I am wondering if Microsoft can be sued for antitrust monopoly practices if it decides to make major games like Call of Duty exclusive to the Microsoft console.

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  • I don't believe that this question, while legitimate in theory, has an answer that can clearly be determined from existing law. There are solid arguments each way and there is no prior case squarely on point of which I am aware. It would be a "question of first impression" to some extent.
    – ohwilleke
    Jan 22, 2022 at 2:10
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    Microsoft (and you for that matter) can be sued regardless of whether they did that. Whether they would lose or not is a different matter.
    – JohnFx
    Jan 22, 2022 at 2:26
  • @ohwilleke there is good law in who can sue.
    – Trish
    Apr 26, 2022 at 9:57
  • @Trish the Justice Department can sue anyone and is the most common antitrust plaintiff (although as JohnFX notes, whether the suit is valid or not is another thing). Probably some private plaintiffs would have standing, but I'm not sure which.
    – ohwilleke
    Apr 26, 2022 at 15:02

1 Answer 1

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Can Microsoft be sued: Yes.

Will a suit proceed: Only if it is brought by a government (usually federal). Individuals generally don't have standing to bring anti-trust suits.

Will a suit be successful: Unlikely, in my opinion (though I have a much lower perception of Microsoft's "publisher share"). Under US law, to be in violation of anti-trust measures, one must: A) Possess "sufficient power in the relevant market" and B) Must use it's power in a prohibited way

As for the first requirement, it does not appear to even be approaching that critical mass, to me. Even if Sony were to be adversely impacted, this doesn't matter (and Sony is nowhere near going bankrupt; they could write off their entire Playstation division and do just fine. They have their fingers in many business pies, to the point that one of their most profitable divisions sells life insurance).

Instead, the limit is not "Sony" but rather "video games"; if constrained to the console market there are currently three major players (Microsoft, Sony, and Nintendo), with a forth competitor recently entering the fray in Valve. A wider market would also include computers and cellphones. There are thousands game makers and studios, many of whom are self-publishing their games.

Furthermore, even if Microsoft is determined to be a monopoly in the video game market, obtaining that status is not illegal. One must make one of a number of prohibited actions while benefiting from monopoly status.

One the surface, the most likely issue is "tying" which Microsoft has been actually sued over in the past. However, since video games and consoles are not sold together, this is not applicable on first glance. (Though the resource I looked at only mentioned selling the items together, with no mention of them needing each other to run properly).

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  • also: technical problems. Console and computer games are structurally different in that you need to extensively modify the files to even run on consoles. The gap is getting smaller, but it is still there.
    – Trish
    Apr 26, 2022 at 9:55
  • @Trish: Not necessarily; it depends on how the game code is written, how dependent the game is on the architecture, and what environments the game was intended to run on in the initial design. A high powered tripleA game that's trying to squeeze every drop of graphical and computing power probably optimizes itself to the architecture to a degree that it would indeed require extensive reworking to move it to a new console. Tetris, on the other hand, probably not beyond inherent console differences (e.g. DRM, APIs, etc.).
    – sharur
    Apr 26, 2022 at 10:14
  • "Individuals generally don't have standing to bring anti-trust suits." False. See, e.g., lawdigitalcommons.bc.edu/cgi/….
    – ohwilleke
    Apr 26, 2022 at 15:04
  • @ohwilleke: Interested to read you source, but got "ERROR: This is an invalid URL. Please reenter the URL, or if you clicked a link in an email message to get here, make sure the link was not split across two lines." Could you please update?
    – sharur
    Apr 26, 2022 at 15:45

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