Google and the Division of Justice met one ultimate time in an Alexandria, Virginia courtroom to debate the way forward for Google’s on-line advert tech juggernaut.
Over about three hours of closing arguments, attorneys for both sides delivered their final arguments earlier than US District Court docket decide Leonie Brinkema, who is anticipated to rule on it by the tip of 2024. If she declares Google’s advert tech system a monopoly, the case will progress to a second trial for treatments — a course of at the moment enjoying out in a separate DC District Court docket case over Google search.
Lots of the arguments had been acquainted to any Google trial watcher. The DOJ argues Google used a collection of advert tech merchandise, notably Doubleclick For Publishers (DFP) and the AdX trade, to strong-arm web site homeowners and advertisers. Google counters that it faces competitors from different sources and shouldn’t have to chop offers with rivals. However the ultimate statements let Brinkema, who spent the trial’s early days asking witnesses to interrupt down complicated technical matters, push again on both sides’s arguments — this time with a stable command of the info.
One market, or three?
One of many trial’s largest questions is what number of markets Google truly works in. The federal government sees three separate advert markets that Google dominates: one for writer advert servers, one for advert exchanges, and one for advertiser advert networks. Google says there’s a single, two-sided market of patrons and sellers for digital advertisements, placing Google in competitors with social media firms like Meta and TikTok.
Google’s reference level is a 2018 Supreme Court docket precedent known as Ohio v. American Specific. The ruling thought-about whether or not a coverage AmEx imposed on retailers unfairly suppressed worth competitors. The court docket determined that there was a single market comprised of retailers and bank card customers, and it required the federal government to show hurt on either side — a better customary to fulfill.
The federal government on this case has argued this isn’t an inexpensive comparability, and in closing arguments, Brinkema appeared to agree. “I’ve learn that AmEx case extra occasions that I most likely ought to have,” Brinkema stated throughout Google counsel Karen Dunn’s closing arguments. “We’re coping with a very totally different set-up, it appears to me.” Brinkema stated that earlier within the case, she thought Google made “a really enticing argument” for its AmEx comparability, however the extra she learn it, the much less it mapped onto this case.
Nonetheless, Brinkema requested why the federal government targeted most of its consideration in the course of the trial on publishers and known as advert company witnesses moderately than advertisers themselves. DOJ counsel Aaron Teitelbaum stated publishers’ points with Google (like irritating ties between DFP and AdX) had been notably good at highlighting anticompetitive conduct, that stemmed from Google’s entry to advertisers via its advert community, and that advert businesses — not their advertiser purchasers — had been those usually navigating Google’s merchandise.
She additionally requested how the DOJ would try and win if she finds a single, two-sided market. Teitelbaum stated that even in that state of affairs, the court docket can discover direct proof of monopoly energy the place Google does one thing it is aware of prospects received’t like — like Unified Pricing Guidelines (UPR) that prevented publishers from setting larger costs on Google’s AdX than on different servers. That’s one thing solely a monopolist may do, he stated.
Refusal to deal
Google’s second massive authorized weapon is a 2004 ruling often called Verizon v. Trinko — which stated, very broadly, that Verizon wasn’t required to share its telecommunications community with AT&T. Trinko says below most circumstances, firms can refuse to cope with rivals. Google argues that its merchandise are already interoperable with different advert tech providers, and requiring extra of that interoperability by regulation would make Google’s advertiser buyer base into “group property.”
The DOJ has retorted that Trinko isn’t about coping with your individual prospects. “Each single occasion of conduct is Google versus its prospects,” Teitelbaum stated — pointing to situations the place Google eliminated choices for customers in its advert instruments. However Brinkema appeared uncertain of that argument, saying AdX specifically appears to be in direct competitors with different advert exchanges, and isn’t customer-facing in the best way the DOJ tried to argue.
What about these deleted chats?
As Google makes its arguments, it’s being dogged by an accusation that’s adopted it into courtroom after courtroom: a declare that it intentionally deleted chat messages that might have made it look unhealthy. Google says most messages had been merely informal water-cooler dialog, nevertheless it’s conceded some included substantive enterprise discussions. The DOJ desires Brinkema to attract an adversarial inference wherever she’s unsure about what deleted messages stated — in different phrases, assume the deleted messages would have seemed unhealthy for Google’s case.
Dunn, from Google, accused the federal government of cherry-picking ominous-sounding traces from Google executives in inner paperwork. When learn with full context, Dunn argued, some merely present individuals riffing on matters the place they acknowledge they’ve little experience. They might even display that Google welcomed workers sharing ideas over e-mail.
However Brinkema stated that Dunn was “getting near the very important argument plaintiffs have raised”: the truth that no one truly is aware of what executives had been considering in some instances, as a result of these chats are gone. “I believe you’re in somewhat bit [of] harmful territory,” she warned.