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A few peanut-gallery thoughts on DOJ v Google as a veteran of Google #antitrust, based on DOJ preview in WSJ 1/ https://www.wsj.com/articles/justice-department-to-file-long-awaited-antitrust-suit-against-google-11603195203?mod=hp_lead_pos1
The reporting has made clear this has been a Barr-driven case in search of a legal theory. Rejected options:
Anti-conservative bias:
Zero legal basis
Search bias:Already won by Google in FTC in 2013
Ad tech:Difficult to understand, not sexy enough for Barr
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Anti-conservative bias:
Zero legal basisSearch bias:
Already won by Google in FTC in 2013Ad tech:
Difficult to understand, not sexy enough for Barr2/
That left… 
search distribution deals! 3/
search distribution deals! 3/
WSJ highlights two types of G search deal:
1. “Default” search deals (Android, Safari) - where consumer can change Google as search engine
2. Exclusive, non-changeable search deals - where consumer can’t change search engine
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1. “Default” search deals (Android, Safari) - where consumer can change Google as search engine
2. Exclusive, non-changeable search deals - where consumer can’t change search engine
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Category #1 is like supermarket end-caps: Google has paid for privileged position, but easy enough for consumer to pick rival product just down the shopping aisle
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Category #2 is like Pepsi/Coke exclusive vending deals with schools: higher consumer switching costs but not impossible to seek out alternatives.
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And there’s a lot of antitrust arguments around pro-competitive justifications for exclusive dealing, incl from DOJ itself https://www.justice.gov/atr/procompetitive-justifications-exclusive-dealing-preventing-free-riding-and-creating-undivided
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Expected Google defenses:
1. DOJ staff attorneys resigned this questionable case
2. In default deals, zero user cost of switching to rival search engine
3. Google search is the qualitatively best search engine, so impossible to separate user preference from role of defaults
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1. DOJ staff attorneys resigned this questionable case
2. In default deals, zero user cost of switching to rival search engine
3. Google search is the qualitatively best search engine, so impossible to separate user preference from role of defaults
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4. All deals were the result of competitive bidding (mostly vs. MSFT)
5. Search deals benefit consumers by cross-subsidizing platform and content development costs
6. Google search so preferred by consumers that platforms face blowback over non-Google search defaults
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5. Search deals benefit consumers by cross-subsidizing platform and content development costs
6. Google search so preferred by consumers that platforms face blowback over non-Google search defaults
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Both sides will also spar over “data barrier to entry” arguments. DuckDuckGo will say it can’t get better without more searches. Google will say it’s the quality of recipes that matters, not the # of ingredients
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Search rivals would love a search “ballot screen” as Android offers in EU, though important to note that a similar EU solution for MSFT/browsers had no impact https://www.computerworld.com/article/2860886/microsoft-nixes-eu-browser-ballot-screen.html
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Beneficiaries of the case: search rivals DuckDuckGo and Bing (though MSFT maintains a detente with G). Does nothing for Yelp, Tripadvisor, news publishers, ad tech competitors. Case *could* hurt the major $ recipients of G’s search deals: Apple, Mozilla, Samsung, telcos
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Lots of parallels to DOJ’s challenge of AT&T/Time Warner. DOJ brought a politically-driven case bc Trump didn’t like CNN, then lost badly in court. Same likely to happen here.
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Two paths to this case depending on election results:
Trump re-elected: Case litigated for 2 years, Google ends up winning in court
Biden wins: Incoming DOJ reviews case. Much as Bush DOJ settled MSFT case in early 2001, new DOJ settles case with a few G concessions
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Trump re-elected: Case litigated for 2 years, Google ends up winning in court
Biden wins: Incoming DOJ reviews case. Much as Bush DOJ settled MSFT case in early 2001, new DOJ settles case with a few G concessions
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In sum, most press today will hype “legal war” between US govt and Google, and R’s will cheer the case for techlash/power/work-the-refs reasons, but I predict Google ends up prevailing on the legal merits
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See Jordan, Jim: https://twitter.com/Jim_Jordan/status/1318585259462623232
