Issue link: https://maltatoday.uberflip.com/i/1504102
5.12.19 12 20.7.2023 Joost Rietveld Joost Rietveld is Associate Professor in Strategic Management, UCL OPINION Microsoft and Activision: the big questions that will decide whether the US$68 billion deal goes ahead M icroso's proposed US$68 billion (£52 billion) acquisition of video game maker Activision Blizzard should be allowed to go ahead, according to a US federal judge. Aer five days of gruel- ling testimony, Judge Jacqueline Corley ruled the merger is un- likely to result in a substantial lessening of competition across the markets for video game con- soles, multi-game subscription services and cloud streaming. e ruling paves the way for Microsoft to finally consum- mate the merger after nearly a year and a half of regulatory scrutiny. Yet US competition authority the Federal Trade Commission (FTC) has taken the rare step of appealing the decision. With the UK's Competition and Markets Authority (CMA) also blocking the deal, it could still fail to conclude before an agreed completion deadline between the companies of July 18. So what are the main issues and how is this likely to play out? Cloud gaming Microsoft owns the Xbox gaming console and makes games like Minecraft and Age of Empires. California-based Activision is one of the largest games makers in the world, with franchises like Call of Duty, Diablo and Candy Crush. Cloud streaming is viewed by many as the future of gaming. Microsoft's xCloud streaming service competes with Ama- zon's Luna, Nvidia's GeForce Now and Sony's PlayStation Plus – alongside several small- er services such as Boosteroid, Gamestream and Ubitus. Microsoft's xCloud currently holds around 60%-70% market share, which is mostly attribut- ed to the service being bundled with the popular Xbox Game Pass Ultimate subscription service. e next largest com- petitors, Nvidia and Sony, have around 10% to 20% share each. So far, however, cloud gam- ing has struggled to take hold with consumers. Compared to video streaming, it is com- putationally more demanding. is makes it prone to laten- cy, which degrades the user experience. Services have also struggled to successfully differ- entiate themselves by offering exclusive games. e most notable failure to date is Google's Stadia, which shuttered in January 2023 af- ter less than four years. Yet as a whole, the segment is expected to keep grinding upwards, cap- turing 6.2% of gaming in 2027 compared to 3.8% today, with revenues rising from US$4.3 billion to US$18.7 billion. Regulatory differences e proposed merger has already been approved in 40 countries, with ten regulators clearing the deal uncondition- ally, including Brazil, China, Japan, South Africa and South Korea. e European Commis- sion (EC) was among those that cleared the deal with condi- tions. ese related to ensuring Activision games wouldn't be restricted to Microsoft's cloud gaming services but could be played on any platform. Key to the US and UK author- ities taking a more restrictive view are the questions of what cloud gaming is, how it will de- velop over the next ten years and the extent of Microsoft's dominance – especially after it integrates Activision's port- folio. e first key point of conten- tion is whether cloud gaming constitutes a separate market or a mere method of distribu- tion that is embedded in the broader distribution ecosys- tem. e UK and US compe- tition authorities both view cloud gaming as a "distinct market" that needs to be pro- tected from a large technology incumbent. On the other hand, Judge Corley called it a "poten- tial alternative delivery mecha- nism" that is embedded within console and PC gaming plat- forms and does not need to be treated as a separate antitrust market. I agree with her. Earlier this year I submitted a report to the CMA titled Cloud Gaming Is Not A Distinct Market. My main point was that the cloud platforms both operate in very different ways and are deeply embedded in other distribu- tion methods like console and PC gaming. For example, a consumer can only stream games on Nvidia's GeForce Now if they own them on a traditional distribution platform such as Valve's Steam. Equally, the vast majority of Mi- crsoft xCloud users access the service from their Xboxes, and 80% of them access streaming to sample and play games while waiting for their downloads to finish in the background. e second issue concerns whether Microsoft's acquisi- tion will harm consumers in cloud gaming. Paramount here are the various licensing agree- ments for all Activision games that Microsoft has offered to ri- val providers like GeForce Now and Boosteroid, conditional on the merger being approved. ese contracts are ultimately what secured EC approval. e CMA has traditional- ly taken a dim view of such li- censing deals due to potential challenges around enforcing contracts, but Judge Corley also took a more positive stance. She and the EC both thought the deals would end up enhancing competition. In my view, mak- ing Activision games available on more cloud platforms could spur adoption by consumers. It might also end up benefiting other games makers. What next e next few days will be cru- cial. e terms of the deal stip- ulate that Microsoft must con- summate the merger by July 18, or pay Activision US$3 billion in termination fees. Yet block- ing the way are the FTC appeal and the CMA in the UK. e CMA signalled it was willing to negotiate with Mi- crosoft after the US ruling, but has since tempered any expec- tations of a quick resolution. As it stands, Microsoft is taking its case to the UK Competition Appeal Tribunal. It seems unlikely that all out- standing issues will be resolved by July 18. is begs the ques- tion of whether Microsoft and Activision will risk closing the deal anyway, which could see them forced to de-merge later. Alternatively they might feel they have to extend and rene- gotiate the terms. In the midst of this drama, a notice has circulated stating that Activision will get del- isted from the Nasdaq-100 index as early as July 17. is suggests the firms may indeed be preparing to close the deal. We should soon find out if it is going to set a new high score for video game acquisitions or whether it is game over for Mi- crosoft and Activision. Microsoft's cloud gaming platform currently dominates the market