On September 9th the curtains opened on the second USA vs Google antitrust case against Google, this time for anti-competitive practices in relation to their alleged monopoly over AdTech. The DOJ is seeking to stop the harm, impose damages and potentially break up the business to restore competition.
The documents in the case can be found here: Antitrust Division | U.S. and Plaintiff States v. Google LLC [2023] | United States Department of Justice
Page 137 of the DOJ’s 153 page complaint outlines the problem as an “anti-competitive scheme” which is detailed as Google’s 10 point plan that breaches the Sherman Act. Violations include specifically:
“Unlawfully monopolizing the publisher ad server market through a course of exclusionary conduct. Each of Google’s actions increased, maintained, or protected its publisher ad server monopoly and/or market power in adjacent markets. The following exclusionary conduct—taken together—unlawfully established or maintained a publisher ad server monopoly:
(1) Google’s acquisition of DoubleClick to obtain not only a dominant publisher ad server, DFP, but also a nascent ad exchange, AdX, in order to pursue its goal of dominance across the entire ad tech stack;
(2) Google’s restriction of Google Ads’ advertiser demand exclusively to AdX;
(3) Google’s restriction of effective real-time access to AdX exclusively to DFP;
(4) Google’s limitation of dynamic allocation bidding techniques
(5) Google’s providing AdX with a “last look” auction advantage over rival exchanges;
(6) Google’s acquisition of AdMeld to stop its yield management technology from promoting multi-homing across ad exchanges;
(7) Google’s use of Project Bell, which lowered, without advertisers’ permission, bids to publishers who dared partner with Google’s competitors;
(8) Google’s deployment of sell-side Dynamic Revenue Share to manipulate auction bids—again, without publishers’ knowledge—to advantage AdX;
(9) Google’s use of Project Poirot to thwart the competitive threat of header bidding by secretly and artificially manipulating DV360’s advertiser bids on rival ad exchanges using header bidding in order to ensure transactions were won by Google’s AdX; and
(10) Google’s veiled introduction of so-called Unified Pricing Rules that took away publishers’ power to transact with rival ad exchanges at preferred prices.
The DOJ claims each of these acts is anticompetitive in its own right, and are also part of a scheme which means DOJ is claiming linkages between actions as part of a strategy with a “cumulative and synergistic effect that has harmed competition and the competitive process”.
The first First Claim is the Monopolization of the Publisher Ad Server Market the Second Claim is the Monopolization of the Ad Exchange Market, the Third Claim is Monopolization of the Advertiser Ad Network Market the Fourth Claim is : Unlawful Tying of Adx and DFP.
The DOJ is seeking Damages and orders to restore competition and in particular (p139) for the Court to :
“Order the divestiture of, at minimum, the Google Ad Manager suite, including both Google’s publisher ad server, DFP, and Google’s ad exchange, AdX, along with any additional structural relief as needed to cure any anticompetitive harm;”
Remedies are aimed at neutralizing the conflict of interest that arises from ownership. The problem in a nutshell is stated by DOJ, quoting Google execs as:
“Google’s pervasive power over the entire ad tech industry has been questioned by its own digital advertising executives, at least one of whom aptly begged the question: “[I]s there a deeper issue with us owning the platform, the exchange, and a huge network? The analogy would be if Goldman or Citibank owned the NYSE.”
The record is now filling up with revelations of Google anti-competitive acts. Exhibits in the case already show that the aim of Google in 2009 was to ‘crush the competition’.
This blog will update on how well DOJ is proving its case, what Google’s defence is, as well as selected pertinent coverage of the case by other journalists and industry commentators:
Lay of the land:
DOJ:
The DoJ case is that Google has an illegal monopoly in three areas: the publisher side of advertisement serving, the advertiser exchanges as well, and finally in the advertising network market (AdWords). The DoJ also argues that in course of creating this illegal monopoly Google further illegally tied the ad server and the ad exchange as to exercise dominant control over other market participants. The DoJ argues that Google’s market share is display ad server and advertiser networks is around or above 90% which, in addition to their control of 50% of the market via AdX, has created a monopoly. They further argue that Google, by allowing AdX first and last looks on publisher sale prices has ensured that it is the only sell side publisher with the best ads which it can then sell to its own network.
Google:
Google, on the other hand, has pursued a relatively narrow argument focusing on attempting to question the DoJ’s chosen market definition, arguing that display advertising is a legal fiction and that in the context of the larger market Google’s share was only around 25%.
DOJ, in seeking to argue a that looks to be relying on supreme Court Precedent ( Trinko vs Verizon) that Google cannot be compelled to deal with competitors and that Google’s actions have legitimate business goals, so as a result even if they have a monopoly, it is not an illegal one and they have not acted unlawfully.
The first issue to keep an eye over the next few weeks, is whether the DOJ or Google are able to establish their definitions of the relevant market. Secondly, whether any previously hidden anti-competitive scheme or strategy to exclude competitors is revealed by the evidence.
Interesting exhibits:
Each week, we will aim to identify interesting exhibits from the trial so that you can see with your eyes the anti-competitive actions of Google. To date we have found:
Chris Harris to Eisar Lipkovitz (Google Executives): ‘Of course, helping new start-ups becoming buyers on AdX is not a great strategy for GDN as it will create new competition.’
Jerome Grateau to Aparna Pappu: ‘I am not sure bringing more transparency on pricing will help us’
Email from Jim Giles to Nitish Korula: ‘dynamic revshare is just yet another way for AdX to exploit the last look advantage’
Email from Donald Harrison to Michelle Sarlo Dauwalter: ‘launching AdX into a non-DFP server destroys this competitive first look advantage and would most likely lead to AdX (1) losing access to overall queries, and (2) losing access to the highest-value queries. The value of Google’s ad tech stack is less in each individual product, but in the connections across all of them. Google-scale data is Google’s competitive advantage.’
Speech from David Rosenblatt (former CEO of DoubleClick): ‘I really believe that if we can execute on this stuff, we’ll be able to crush the other networks, and that’s our goal.’ ( emphasis added).
Other sources:
Please also see:
Ari Paparo, The Monopoly Report: provides a technical focus on the Google trial, covering the trial from the court room.
Jason Kint, Digital Content Next: provides updates on the trial and exhibits on his Twitter, providing more of a market based focus on the events, reflecting Digital Content Next’s interests from its major publisher base.
Tom Blakely, BIG Tech on Trial: provides a more legal focus.
Movement for an Open Web Ltd was established in 2020 to challenge the tech monopolists and campaign for the internet to remain interoperable. The organisation is supported by a number of generous allies and our work quite literally could not be done without them. We have achieved a lot in the past few years, including being the primary complainant behind the CMA’s investigation into Privacy Sandbox as well as the European Commission’s and the CMA’s Statements of Objection to Google. We’ve also been closely involved with the US Department of Justice on the ongoing Google AdTech trial and have been advocating for fairer and more balanced rule making at the W3C.
There is still a lot of work to be done and we can’t do it alone. We want to help create a digital market that is fit for purpose for the next 20 or 50 years, not just a solution that punishes the most egregiously monopolistic acts in the short term.
For more information on MOW and how you can get involved, please get in touch.