The DOJ’s trial concerning Google’s Search Engine monopoly began this week. To summarise:
Tuesday
Google’s defence against the DOJ’s claim that their business constitutes a monopoly rests on their disavowal of dominance in online search. The haziness of whether search constitutes a market that can be monopolized received sustained attention later in the week. In the defence’s opening salvos, it sought to frame search as broadly as possible; if they could include Amazon and other major companies that have their own search tools as competitors then Google’s own prominence appears diminished. But the internal slide decks that the DOJ brought in as evidence contradicted these claims: one set from 2007 examines Google’s competitiveness with Yahoo and MSN for search share dominance.[1] The evidence clearly indicates that Google’s own corporate strategy operates according to a narrower framing of their competitors than their defence would have the Court believe.
Within this tighter understanding of search competitiveness, Google has already been found to be dominant in previous trials. For instance, prior cases in the EU ruled in this way because of Google’s superiority in ‘online ad-funded search’ — its offering to consumers and advertisers is virtually unassailable without vast capital and intellectual property investment.[2] The barrier for entry is too high for the market to be competitive.
Wednesday – Thursday
The prosecution moved on to the notion of whether online search constitutes a separate market. They cross-examined Hal Varian, Google’s Chief Economist, as well as Shazam Founder Christ Barton, a behavioural economics expert, and Jim Kolotorous, who leads Google’s partnerships with Android. The DOJ produced evidence from a 2007 slide deck that Google employees had referred to a ‘Search battle’ which required a strategy involving manipulation of default options to ‘grow and defend market share.’[3] This evidence suggests that Google themselves have viewed search as a market in which they have a large share for over a decade. In fact, this framing of search was so prevalent in the company that Google employees had to be coached to avoid speaking in these terms; they produced an email exchange where Hal Varian corrects Penny Chu’s use of ‘market share’ to ‘query share’.[4] Not only do Google executives understand search as a market — they are aware of the uncomfortable implications of this framing and require ‘Legal 101’ to reprogram their employees.[5]
Ultimately, the fact that the DOJ can produce evidence that Google themselves view search as a market neuters the defence’s rejection of market dominance. Clearing the way for the DOJ to view search as a market, these exhibits gesture to a long-term strategy on Google’s part to monopolize search.
Friday
The Judge dismissed Google’s challenge to the appointment of Jonathan Kanter as the person overseeing the case. Google’s objections to Kanter — the Assistant Attorney General for Antitrust — stem from Kanter’s previous work for Microsoft and other of Google’s competitors; Kanter is biased, Google claim, because of his allegiance to his former employers. The U.S. District Judge rejected Google’s allegations as ‘essentially a red herring defense.’[6] Google’s arguments are spurious for several reasons: firstly, as the Judge noted, Kanter is not ‘the sole attorney in this case’ — there are in fact attorneys from 17 states in the DOJ’s lawsuit; secondly, lawyers do not automatically and everlastingly adopt the opinions of their clients; thirdly, Kanter’s experience in the world of Big Tech is exactly what qualifies him to lead the DOJ’s case. If he has experienced Google’s alleged wrongdoing firsthand, then his experience enables him to provide better evidence and arguments to the judge for a decision.
[1] Trial Exhibit – UPX0960 : U.S. and Plaintiff States v. Google LLC (justice.gov).
[2] See https://www.nytimes.com/2022/09/14/business/eu-google-antitrust-fine.html.
[3] Trial Exhibit – UPX0123 : U.S. and Plaintiff States v. Google LLC (justice.gov), p. 19.
[4] Trial Exhibit – UPX0499 : U.S. and Plaintiff States v. Google LLC (justice.gov).
[5] Trial Exhibit – UPX0499 : U.S. and Plaintiff States v. Google LLC (justice.gov).
[6] Judge rejects Google’s claim that DOJ attorney is biased – The Washington Post.
These exhibits have since been taken down as a result of Google’s complaints. We leave the links up in the hope that the exhibits will be reinstated.
Header image courtesy of Solen Feyissa via Unsplash (Licensed for free use under the Unsplash License).