Tuesday marks the start of the most prominent tech monopoly trial since the Department of Justice sued Microsoft two decades ago. The DOJ will seek to show that it can take a successful anti-trust action in the current digital world, while Google will try to protect its traditional practices for its search products. Here is what can be expected in this extended trial and the major topics of discussion in the dispute.
Beginning Tuesday, the Department of Justice (DOJ) and a group of state attorneys general will present their case to a D.C. District Court judge, arguing that Google has breached anti-monopoly laws with its exclusive agreements with mobile phone manufacturers and browser makers. Google, in response, will attempt to prove that their behavior is not anti-competitive and that it is what provides users with the best experience.This is the first major anti-monopoly trial for the tech sector in decades and will likely be used by the DOJ to exemplify the successful enforcement of antitrust laws in the modern digital age. It will also be a chance for them to demonstrate that such enforcement is what enables innovation to take hold, with many attributing the Microsoft case to have been the precursor of the proliferation of companies such as Google in a more open internet.For its part, Google will put forward its argument that its business practice is vital in making its services accessible to consumers and is thus creating the best experience for them.As the trial begins, here's what is to be expected.
At the heart of the trial will be two agreements that Google made with other companies. These agreements covered payments that were made by Google to browser makers such as Apple to make Google the default search engine on Safari and other devices, and contracts with phone producers running Google's Android OS which obliged them to preinstall certain Google apps. The US government claims that these actions locked up major pathways for search engines competing against Google, and consequently ran afoul of antitrust law by maintaining a monopolistic power. On top of this, the states have asserted that Google prevented their Search Ads 360 (SA360) ad tool from being interoperable with Microsoft's Bing. According to the complaint, this was done to give them an edge over their rivals and to control advertiser spending. Colorado Attorney General Phil Weiser, who has been leading the state coalition, told CNBC that their respective cases correlated and that "Google's monopoly power has been abused, damaging competition and affecting consumers."
The judge's decision that the states' assertion that Google suppressed vertical search providers - such as Yelp and Tripadvisor - will not go to trial could actually benefit the government, according to antitrust experts interviewed for this article. This is because it allows them to devote more time to other arguments, such as that Google's conduct has stifled innovation that could provide consumers with more options. Nonetheless, Google has maintained that its actions have served to improve the consumer experience with its products.
There is likely to be disagreement over how the government defines the market which Google is alleged to have monopolized. Google has not challenged this definition, which includes direct competitors like Bing and DuckDuckGo, but it has referred to other search tools that consumers utilize. Kent Walker, Google's president of global affairs, highlighted an Insider Intelligence report that found 60% of U.S. product searches start on Amazon, and contended that the prevalence of search options demonstrates Google has not stifled competition.Yet, a substantial portion of the trial is likely to center on whether Google's supposed exclusionary contracts are bad acts which protect its monopoly. Rebecca Haw Allensworth, an antitrust professor at Vanderbilt Law School, has commented that this behavior has no other objective "besides aggrandizing or keeping your market power".Bill Kovacic, a professor of antitrust at George Washington University Law School and one-time FTC chairman, has stated he believes the judge is likely to establish Google has considerable monopoly power, thus the emphasis of the trial will be on its behavior and Google's argument that its practices benefit users.One significant aspect of the case will be assessing the payments Google makes to Apple for its default search engine position in the Safari browser. The government may posit that Google's reported billions of dollars in expenditure on this location and the commitment it has made to be the default serve as confirmation of how beneficial this spot is, as suggested by Allensworth.
Allensworth indicated that Google may claim that its prominent positioning within Apple's browser could draw in more visitor views to its advertisers' content, raising its revenue stream. According to her, the government is likely to try to illustrate that payments for default placement would not be economically viable if not for the purpose of eliminating competitors. Furthermore, it has been contended that Google destroyed evidence when it was aware of potential proceedings; Weiser has indicated the court is willing to take that into account when delivering its judgment. Google, however, have countered the DOJ's statement. Their spokesperson noted that they supplied over 4 million documents and have consecutively been cooperative in responding to inquiries and litigation.
On the first day of the trial, each party will present its opening statements before the Department of Justice (DOJ) starts its case-in-chief. This process of presenting evidence and witnesses could take up to 10 weeks. The DOJ will call upon experts and industry witnesses to substantiate their case. Afterward, the states and Google will take their turns and the plaintiffs may have the opportunity to oppose arguments from Google. Antitrust procedures are lengthy, and even if Google is found guilty in this phase, there could be a second phase to come up with an adequate solution. During the 10 weeks, the court will be looking out for witnesses to be called for testimony. These could include Google’s CEO, Sundar Pichai as well as people from other parties linked to the trial, like Mozilla, Apple, Microsoft, or DuckDuckGo.
The trial's decision will greatly impact the interpretation and application of U.S. antitrust regulations for powerful tech entities. If Google is found to be responsible for the claims, it could be subject to restrictions like the alteration or splitting of its business. Google's senior vice president of public policy and government affairs, Walker, has argued that such a decision could be damaging to consumers as it would involve preventing Google from selling or advertising its products. However, those in favour of the government's argument are almost certain that customers would experience a deterioration in the search service if the court dismisses the government's position.
The result will also demonstrate the Justice Department's (DOJ) capacity to succeed in bringing tech antitrust cases to court. Jonathan Kanter, who is in charge of the DOJ's antitrust division, has a mixed record in court already, but a win would bolster the DOJ's power to present strong cases concerning the complexities of digital markets. If the DOJ are unsuccessful, it could be used as an incentive to support the necessity of new antitrust laws in Congress. Additionally, a positive result may open the tech scene to the emergence of new companies, similarly to the Microsoft case. On the other hand, Schruers has voiced the difficulty in this case due to the rapid AI advances of companies other than Google, such as the chatbot Bard from Google and OpenAI's ChatGPT.
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