Console manufacturers have often lost their case whenever game studios took them to caught over this though. Hence EA and Codemasters not using standard Megadrive / Genesis carts. So there is at least some hope that there is precedence in favour of independent publishers.

Microsoft owns github, it could be said that they no longer depend / compete with the open source community, since they operate it from the shadows. It is reasonable to think that game development is too complex to be privatised (for now, at least)