Thanks to a newly unredacted version of District Judge Jacqueline Scott Corley’s decision, we now know a key reason why she blocked FTC’s injunction, clearing the way for the MS Activision deal.
Florian Mueller shares the pertinent section, but you can read it yourself in page 9 of the document. As Judge Clorey stated;
“As a game publisher, Sony’s PlayStation Studios, is responsible for blockbuster hits like God of War, The Last of Us, and Spider-Man, the vast majority of which can be played only on PlayStation.
And as a purchaser of third-party games, Sony views exclusive content as crucial to PlayStation’s continued success and to “differentiate [their] platform.”
As a result, Sony offers far more exclusive first- and third- party titles than Xbox. Sony also enjoys “an enormous competitive advantage” because it can draw on the intellectual property of “Sony Music, Sony TV, and Sony’s film library” for its game development.
The number of exclusive games available on PlayStation dwarfs the number available on Xbox, with eight exclusive games on PlayStation for every one on Xbox.
Sony has often paid third-party studios to “skip” Xbox—either entirely or to delay a title’s release on Xbox.
For example, on June 22, 2023, while this trial was happening, Square Enix released Final Fantasy XVI, the latest release in the iconic Final Fantasy franchise, exclusive to PlayStation 5.
Previous versions of Final Fantasy shipped on Xbox, but the reason Final Fantasy XVI is a PlayStation exclusive is because Sony “pa[id] to exclude Xbox.”
ZeniMax, too, was paid by Sony not to ship Deathloop or Ghostwire for Xbox, and one of the reasons Microsoft bought ZeniMax was concern Sony would also arrange for Starfield to go exclusive and skip Xbox.”
We have highlighted the pertinent part in bold, but it was worth sharing the whole passage to understand the full context.
Clearly, Judge Corley did use the little time given to her to study the industry, given what prior knowledge she may already have, and the documents given to her by the FTC and Microsoft. She also demonstrates a clear understanding of the industry, in particular the practices surrounding platform and timed exclusivity.
And so, her clear understanding of the situation with Final Fantasy XVI turned out to be pretty damning of the FTC’s case. The FTC’s intention to expand the reach of their agency, towards blocking large mergers on basis of their scale, turned out to be indefensible in the face of power moves from even more powerful players.
Square Enix probably did not want to even get involved in this, but Sony can only blame themselves for it. They made the deal for Final Fantasy XVI, and probably paid Square Enix enough to make that exclusivity worthwhile.
For us gamers, this exclusivity status may seem commonplace and not unusual. After all, isn’t PlayStation closely associated with Final Fantasy, so it makes sense that the games are sometimes exclusive, right?
But perhaps this industry practice was always up for scrutiny. As you may remember, members of US government have raised questions about PlayStation’s dealings in the industry, precisely because of deals like this. There is a non-zero chance that in the following months or years, the US government will very much be investigating Sony next.
