Sony is fined 13.5 million euros for abuse of dominant positioning in the PS4 controller market by the Competition Authority.
After an investigation by the competition authority, instigated by the manufacturer of derivative products and peripherals Subsonic, Sony was fined 13.5 million euros for abuse of dominant position. Contacted by us, Sony did not wish to comment on this decision.
In question, the practices deemed abusive by the manufacturer with regard to PlayStation 4 game controllers from third-party manufacturers, whose activity would have been tainted by “ technical countermeasures » harmful as well as a “ an opaque licensing policy » during the period from 2015 to 2020.
PS4 controllers: Sony's anti-counterfeiting policy singled out
This measure therefore only concerns the market for PS4 controllers, which is open to third-party manufacturers through the OLP (Official Licensed Product) program which separates peripherals officially licensed from Sony, and equipped with an identification chip, and those which do not. They don't have any.
If a PS4 controller did not have this license, then Sony would have initiated certain technical countermeasures by causing “ disconnecting controllers without the identification number, or controllers with a large-scale duplicate number “. Concretely, all the controllers which had not been able to obtain such a license could have suffered malfunctions.
Despite updates proposed by the manufacturers concerned to remedy the problem, the Authority specifies that “ some users were able to reasonably estimate that the disconnections which affected their controllers were attributable to the manufacturers of these controllers and their lack of quality. »
The point on which the Authority focuses in its decision concerning precisely this decision deemed hasty and abusive on the part of Sony, which would have affected “ affected indifferently infringing controllers and unlicensed, but non-infringing controllers “.
Under the guise of the fight against counterfeiting, Sony would therefore have abused its dominant position by punishing competing brands:
By taking technical countermeasures against companies from which it had not been able to obtain convictions for counterfeiting before the French courts, Sony had gone further than what was strictly necessary in view of the objective pursued, so that the restriction of competition resulting from the practices cannot be justified.
The Authority also mentions the patent infringement argument invoked by Sony, which it considers fallacious:
If Sony claims that unlicensed controllers are necessarily trademark infringements or patent infringements, the Authority, which rejects this argument, recalls that the patents invoked by Sony expired during the period of the practices or were about to be expired. expire.
These measures may also affect many players and associations purchasing third-party peripherals that are not necessarily licensed, as is currently the case for Xbox consoles.
But the Authority also sanctions another practice deemed reprehensible, that of an official license that is too opaque.
Sony licensing program too opaque?
The second component of this sanction from the Competition Authority targets Sony's official licensing program, OLP (Official Licensed Product). Each third-party manufacturer can make a request to join the program and thus offer controllers for sale “ official » for PlayStation.
However, the Authority judges the criteria for access to this program “ opaque “, both by their ” imprecision “, but also by the lack of communication from Sony concerning the terms of acceptance. Knowing that being officially licensed by Sony allowed full compatibility with its PS4 console, being part of it was more than advisable for all these manufacturers.
One of them, Subsonic, which is at the origin of the referral, “ was never able to obtain membership criteria from Sony. The Authority therefore considers that Sony's licensing policy has proven to be opaque, difficult to understand and therefore difficult to integrate into practice.. »
While it ensures a certain quality control and avoids counterfeits, such a program would disadvantage competition in pushing players to obtain the brand's official peripheral:
The Authority observes, in this regard, that dissatisfied users were discouraged from purchasing controllers from unlicensed third-party manufacturers, but furthermore that their negative comments may have dissuaded other users from making such a purchase, so that these new buyers have logically shifted their choice to a Sony controller or one approved by the latter as part of the licensing program.
A fine of 13,527,000 euros for Sony Europe and the world
This decision is based in particular on the context of the infringement, during the best years of the PS4's life, “a moment when this market opened up to competition” and “precisely allowed the rise of competitors”.
Sony will therefore have to pay a fine of 13,527,000 euros, jointly charged to the French, European and global entities of the Japanese giant.