Wilkinson points to the fact that Microsoft's CEO said he wants games to be on all platforms, doesn't like exclusives.

🧵126/X

— Florian Mueller (@FOSSpatents) June 29, 2023

FTC says it was a tactic for Nintendo to sign the contract as an option but doesn't mean it's a guarantee.

Judge: why does it have to be a guarantee?

FTC: if not, doesn't offset the concerns

🧵128/X

— Florian Mueller (@FOSSpatents) June 29, 2023

Judge wants Microsoft to assess the point that no financial analysis was done "which seems odd".

This was now the first point where Judge Corley appears receptive to an FTC argument and in a way that surprises me.

🧵130/X

— Florian Mueller (@FOSSpatents) June 29, 2023

Judge Corley: if they buy CoD on Xbox, then (post-deal) MSFT gets 100%. If they buy on Nintendo, not so. Why didn't they assess... it's going to take some of their sales away from Xbox.

🧵132/X

— Florian Mueller (@FOSSpatents) June 29, 2023

The cloud part of the discussion is now a considerably closer call than the console part. The console part is clearly dead. The FTC has to overcome various hurdles for the cloud, but Judge Corley is not at the point of dismissing the cloud theory of harm 100%.

🧵134/X

— Florian Mueller (@FOSSpatents) June 29, 2023

FTC sought discovery and says they were shielded.

Judge Corley to FTC interrupts FTC: when you filed the PI motion, you would have had time, but because it was done this late we didn't have that opportunity. I don't know what happened, not gonna make a difference here

🧵136/X

— Florian Mueller (@FOSSpatents) June 29, 2023

FTC says Microsoft's deal model is all about Microsoft's products and services, says neither FTC nor court has any evidence of procompetitive benefits of those agreements. Companies in Hong Kong, Eastern Europe...

🧵138/X

— Florian Mueller (@FOSSpatents) June 29, 2023

FTC now says latency is another reason. Product in Hong Kong is not a reasonable substitute. Judge Corley: with respect to cloud streaming that's probably true.

FTC: antitrust law requires analysis of procompetitive benefit

🧵140/X

— Florian Mueller (@FOSSpatents) June 29, 2023

Judge – wait a minute – how is MS giving Nvidia content not a positive for consumers?

FTC - Could be but we don’t know – we have no evidence.

— Michael Acton (@MActon93) June 29, 2023

Judge: if CoD was on GP not on PS+, wouldn't that just incentivize Sony to up their game, it would increase competition as opposed to decreasing competition?

It's not available on PS+ now, not taking anything away.

🧵142/X

— Florian Mueller (@FOSSpatents) June 29, 2023

FTC says that Microsoft buying Activision content is bad, while agreements between the platform owners and game makers are competition.

FTC doesn't consider that market leader has cost advantage for exclusive deals.

🧵144/X

— Florian Mueller (@FOSSpatents) June 29, 2023

But she asks that if MS limited COD to Game Pass, would that not incentivize Sony to “up their game"?

FTC lawyer - if this deal goes through, terminates independent ability of Activision to EVER sign a deal for COD on PS Plus.

— Michael Acton (@MActon93) June 29, 2023

FTC: why doesn't Sony put their games day and date on PS+? I don't know. But it is not an adequate response by defendants to say "good, now Sony will do the same thing and build a walled garden of their own."

🧵146/X

— Florian Mueller (@FOSSpatents) June 29, 2023

Judge Corley voices to FTC her concern that this industry changes all the time, it's dynamic, amorphous

🧵148/X

— Florian Mueller (@FOSSpatents) June 30, 2023

FTC: Microsoft buys CoD because it is unique in so many ways, #1 every year, and the one disappointment Mr. Kotick mentioned is still #1

🧵150/X

— Florian Mueller (@FOSSpatents) June 30, 2023