U.S. Needs to Reassess Its Antitrust Case Against Google

Put yourself in the well-shined shoes of some ambitious lawyer in the Department of Justice — someone who’s managed to win a coveted spot on the team bringing the antitrust case against Google. This is the case of a lifetime. Billions of dollars are at stake in a precedent-setting legal action against one of the world’s biggest and most visible companies. Win this one and you can resign from your civil service job and walk into a partnership at some big silk-stocking law firm.

But you’ve got a problem. You can’t go into court with some vague complaint about how Google is just too big. It’s not against the law to be worth more than $1 trillion. To win the case, your team has to show first that Google has “monopolized or attempted to monopolize” some market.

That’s not going to be easy. Google operates in two distinct markets. The U.S. government needs to explain whether Google presents a threat to competition in either or both.

First, there’s the market for advertising. Google makes lots of money selling ad space on their search platform, but they also have lots of competition. Advertisers can place online ads on platforms such as Facebook and Amazon. Google also faces stiff competition from traditional advertising outlets like newspapers, TV and billboards.

The other market, of course, is for search itself. By some measures, Google appears to dominate that market, since about 90% of all “general searches” are Google searches. But this is a strange, topsy-turvy market. Money isn’t changing hands — we don’t pay for a Google search, but rather consumers are “selling” information in exchange for search services. In any case, it will be hard for the DOJ to claim that Google monopolizes the market for search in a world where any competent 13-year-old can show you a dozen ways to work around Google.

Nobody is stuck using Google. That makes it tough for the DOJ to show that Google holds a monopoly.

[MORE: Consumers Around the World Believe Their Data is Not Protected]

And even if the DOJ can cobble together a plausible case for monopoly, they’d still need to show that Google’s monopoly causes real harm to ordinary consumers. That’s an even tougher argument to win. Remember that the judges and jurors who need to be persuaded are the same people who can’t find their neighbor’s house or settle a bar bet without Google.

Some people dislike Google the company. Everyone likes Google the verb.

If you base your case on showing that Google is a harmful monopoly, you might win — antitrust law is an unpredictable thing. But there’s a better chance you’ll be laughed out of court and you’ll end your career supervising document review in some windowless room.

What to do?

Well, Google’s a big company. They engage in all sorts of activities to promote their products. Why not find something that just, you know, looks bad. And then once you’ve found this ugly thing, go dig up some awkward emails and sell the idea that this — THIS — is what makes Google evil.

That’s exactly how the government plans to win. Google pays Apple about $7 billion per year for the right to show up as the default search engine on Apple products. The DOJ claims this relationship makes it much harder for other search engines to attract users.

Google claims the Apple money is just another kind of product placement — that it’s not much different than Duff Beer paying The Quickie Mart an extra few dollars a month to stock the tallboys in a cooler by the checkout.

Whatever.

Let Google and the DOJ spend tens of millions arguing about what is and is not legitimate product placement.

Think about what happens if Google “loses”? Will the court order Google to be broken up into a bunch of different companies? Will it order Google to pay massive damages?

Probably not. Having found that the problem is the Apple-Google hookup, the most sensible remedy will be to prevent Google from paying Apple.

But it can’t stop there. Any sensible remedy has to prevent Apple from favoring any search engine. After all, if the contract between Apple and Google is anti-competitive, aren’t all such contracts anti-competitive?

If that’s what happens, Google will be OK. In fact, it will be ecstatic. If Apple can’t favor one search engine on its devices, anyone setting up a new device will probably be offered a chance to select their default search engine. Most people will probably pick the one they know best: Google. Google may end up with a slightly smaller share of general search. But they’ll save $7 billion!

In a few months, we will have a new attorney general and the Biden Justice Department will have a chance to review all the ongoing prosecutions. If they have a better theory of how Google violates the antitrust laws, they should bring it. But if they stick with this case, they’ll just embarrass themselves and leave Google stronger than ever.

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U.S. Needs to Reassess Its Antitrust Case Against Google originally appeared on usnews.com

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