Tom Warren

Microsoft’s lawyer:

Elder Scrolls 16?! Obviously Microsoft’s lawyer means Elder Scrolls 6, but also... 2026?! You heard it here first, even if it’s really unlikely it’s coming in 2026.

Judge Corley: Why is the Xbox Series S priced at $299?

The FTC calls back to Xbox CFO Tim Stuart and the evidence where Microsoft’s Xbox Series S strategy price was to “get an entry level gen 9 system.” He says:

Microsoft’s lawyer cuts in and says that Judge Corley “gets it” and that the $299 price shows they compete when a consumer is making a choice in a store like Best Buy.

The FTC then argues that “you can play video games on your phone, you can play a video game on the console,” but that they’re different. FTC once again says Microsoft didn’t look at Switch pricing during launch.

Microsoft’s lawyer fires back that “they both can do the same thing... but they’re also pricing off what’s in the market to look like it’s an alternative.” Microsoft cites Dr. Bailey’s charts that show games like Fortnite, Apex Legends, Rocket League, and other top games are available on both the Nintendo Switch and Xbox.

The FTC says it has seen no evidence that Microsoft is benchmarking the PC against an Xbox. The FTC could easily explain this to Judge Corley that a gaming PC requires a dedicated GPU to play Call of Duty, significantly increasing the price and complexity compared to the PCs people typically have at home or may have purchased during the pandemic.

The FTC could also argue and easily cite data that shows the vast majority of PC sales are laptops, which don’t have the ability to play games like Call of Duty. Instead, they’re going around in circles on basic questions where Judge Corley is trying to understand simple stuff.

It’s almost as if the FTC doesn’t understand the gaming market it’s trying to define.

The FTC is now referencing confidential data and struggling to answer the question clearly.

Microsoft’s lawyer cuts in and says the company asked Dr. Lee about his calculations. “We don’t have any answers,” says Microsoft’s lawyer.

It feels like Microsoft’s witness, Dr. Bailey, offered an easy to understand argument for Judge Corley. Dr. Lee’s testimony wasn’t very clear for us to follow and I think that’s coming through with Judge Corley’s questioning here. But this is a complicated case with both sides arguing about different data to try and prove their points.

“What’s tricky about this case is that you have to look at the specific data for each game,” he argues. Judge Corley wants to know what it is about Call of Duty that they’d abandon their console of choice and buy an Xbox? FTC:

The FTC argues they choices are forgo the game or maybe play it on another console they might own if they happen to have an Xbox or they’ll have to go buy an Xbox. “This results in a share shift to Xbox,” says the FTC.

Judge Corley wants to know how you calculate the number of people would switch to Xbox, so Microsoft would have the economic incentive to foreclose:

Judge Corley references that 62 percent of all PlayStation owners don’t play Call of Duty at all. “They’re not going to miss it, the foreclosure won’t affect them.”

Judge Corley: How do you decide that Call of Duty is so important to them?

The FTC struggles to respond and references Jim Ryan’s testimony instead of answering the question related to Dr. Lee’s testimony. “That’s not what I asked,” says Judge Corley.

Judge Corley is really fixated on Call of Duty here. Another FTC lawyer has stepped in to try and help explain.

Judge Corley wants to know which Bethesda game is comparable to Call of Duty? FTC says The Elder Scrolls. FTC also argues Call of Duty is “so exceptionally valuable and so unique.”