Yes, that's why I put "looks" between quotes and why I mentioned the CoD DLC deals. Both of them are doing the exact same thing. The only new thing is Sony's claim that MS doesn't want multi-disc games which can't be independently verified. Even the sole independent evidence we have (Carmack's keynote) about per-disc royalties contradicts Sony's claim of 1 disc policy.
No, while exclusive deals are by themselves on shakey legal grounds, that was not what the OP was suggesting. What was being said is that MS thru threats, intimidations, and punitive actions dictating the business activities of publishers with other platform holders. That's restraint of trade (upon the publishers), which is illegal in the US and I'm pretty damn sure in the EU also.
This is being done thru the cert process where MS states they can withhold "Release from Certification for a Software Title (and for Online Content as applicable) is based on (1) passing the Certification Testing; (2) conformance with the approved Concept and any required submission materials as stated in the Xbox 360 Publisher Guide; (3) Packaging Materials approval;
(4) consistency with the goals and objectives of the Xbox 360 console platform and Xbox Live; and (5) continuing and ongoing compliance with all Certification requirements and other requirements as set forth in the Xbox 360 Publisher Guide and this Agreement".
Now Sony as a 3rd party to this can't do much without an actual publisher bringing suit. However, should a publisher go into receivership, all kinds of actions can be taken on the creditors behalf which could really bring the shit near the fan.
Frankly though, since we are talking about a company on "Antitrust Probation", even the rumor of this kind of activity should have the feds circling.
As to Carmak, as Willits said, Carmak mispoke as to the actual fees. MS charges a single licensing fee per FPU (Finished Product Unit) per sales territory. Per disc costs are with the "Microsoft Authorized Replicator" who have a licensing agreement with MS where "Microsoft may charge the Authorized Replicator fees for rights, services or products associated with the manufacture of FPUs and that the agreement with the Authorized Replicator grants Microsoft the right to instruct the Authorized Replicator to cease the manufacture of FPU and/or prohibit the release of FPU to Publisher or its agents in the event Publisher is in breach of this Agreement or any credit arrangement entered into byMicrosoft and Publisher or Publisher affiliates. ". These per disc costs then become the "cost of goods" that Willits eluded to.
Without knowing exact numbers, Carmak sees a scenerio like this:
MS Licensing fee for FPU - $3.00
AR per disc cost(with $3.50 AR license fee to MS) disc 1 - $5.00
AR per disc cost(with $3.50 AR license fee to MS) disc 2 - $4.50
etc per addition discs
Total for 1 disc FPU = $8.00
Total for 2 disc FPU = $12.50 (3 disc $17.00 etc....)
Diff for multi disc FPU = +$4.50 x 1 mil FPU release = $$$ mils