Feb 9, 2022 - Technology

Gaming is antitrust regulators' blind spot

Illustration of cursor hands covering the eyes of a person in a suit.

Illustration: Megan Robinson/Axios

The biggest video game companies are gobbling up the competition faster than ever while so far escaping significant resistance from antitrust regulators.

Why it matters: Gaming has grown into one of the world's largest media industries but has yet to face the scrutiny other tech sectors routinely encounter over how business practices affect competition, consumers or workers.

State of play: The two largest acquisitions in video game history have happened since 2022 began, and 2021 saw over 250 gaming deals, totaling over $38 billion.

  • Microsoft has been on a spending spree for years, including a $7.5 billion ZeniMax/Bethesda deal in 2020 and its recent $69 billion plan to acquire Activision Blizzard.
  • Sony has steadily snatched up top-tier studios, including its recent bid for Destiny creator Bungie, and now owns the makers of acclaimed game series like Uncharted, Spider-Man and Horizon.
  • Meanwhile, China-based conglomerate Tencent became the majority shareholder of at least seven studios in 2021.

Deals in Big Tech and media now routinely face hurdles from regulators, lawmakers and activist groups.

  • The FTC has an ongoing antitrust suit against Facebook parent Meta over its attempts to bury competitors.
  • Amazon’s bid to buy MGM has led to progressive groups lobbying the FTC to block the sale.
  • While the WarnerMedia-Discovery merger was recently approved, it faced pushback from dozens of lawmakers.

Yes, but: Although game industry titans may have free rein to close deals, they're still keeping a close eye on their watchdogs.

  • Microsoft came out on Wednesday with a preemptive, full-throated welcome of regulators' questions, pledging open marketplaces in the future and support for the Open Markets App antitrust bill.
  • And, in its support for more open app stores, Microsoft shifted the blame to evergreen antitrust targets like Apple and Google.
  • Additionally, now that the FTC has antitrust activist Lina Khan at the helm, many expect the agency to assert a more active role in scrutinizing big buys.

And for all the bluster, regulators and lawmakers have mostly focused their antitrust ire at Big Tech and let other mega content deals pass.

The big picture: Defining what constitutes a monopoly or stifles competition in an industry can be tricky — especially in a fragmented field like games.

  • To prove that a company has a monopoly, regulators have to draw lines around specific markets that are being dominated, and that can be done in countless ways.
  • Gaming could be one big market, or split among mobile, console and PC gaming, or subdivided many other ways.

Microsoft has been clear that it’s after Blizzard Activision for the mobile gaming footprint the acquisition will provide.

  • If antitrust questions arise, Microsoft can argue that the deal will bolster competition in that market.

Flashback: The video game world has long been defined by rivalries and arms races — think Nintendo vs. Sega, or Xbox vs. Playstation.

  • But today, even if there's no single gaming monopolist, the major players run the industry as an exclusive club.
  • Google, even with all its assets and leverage, hasn’t been able to break into the industry with its Stadia service.

What’s next: In a seemingly make or break moment, Congress is considering a few antitrust bills that could make things complicated for future acquisitions — in gaming as everywhere else in tech.

  • Meanwhile, both Microsoft’s Activision Blizzard deal and Sony’s Bungie bid will take a while to jump through the necessary legal hoops before they’re completed.
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