Google lost the first round of its antitrust suit today. As you may recall, there are two big things you have to prove in order to find a company guilty of antitrust violations. The first is that the company is a monopoly, and Judge Amit Mehta made quick work of that:
Plaintiffs easily have demonstrated that Google possesses a dominant market share. Measured by query volume, Google enjoys an 89.2% share of the market for general search services, which increases to 94.9% on mobile devices. This overwhelms Bing's share of 5.5% on all queries and 1.3 % on mobile, as well as Yahoo's and DDG's shares, which are under 3% regardless of device type. Google does not contest these figures.
Mehta also noted evidence that Google's own research shows that it could degrade quality and it still wouldn't suffer any loss of market share. In short, there's no question that Google holds a monopoly both in search and in search ads, where they have an 88% market share.
But that's not enough. It isn't illegal to be monopoly. It's only illegal if you abuse monopoly power—for example, by making it impossible for new competitors to enter the market. Mehta found a number of ways that Google had abused its power, most noticeably by paying billions of dollars to browser companies in return for making Google their default search engine:
Google controls the most efficient and effective channels of distribution for GSEs [general search engines]. It is the exclusive preloaded GSE on all Apple and Android mobile devices, all Apple desktop devices, and most third-party browsers (Edge and DDG are the exceptions). Rivals cannot presently access these channels of distribution without convincing Google's partners to break existing agreements, all of which are binding for a term of years.... It is also a "realit[y] of control” that Google is the sole default on Chrome.
Under current antitrust doctrine, Google could argue that even if all this was true, it didn't matter as long as customers got a good deal out of it. But if Google is really that great, why do they have to spend billions to essentially force people to use it?
As a matter of fact and law, then, Mehta concluded the following about Google's control of the search market:
- The Exclusive Agreements Cause Anticompetitive Effects in the General Search Services Market
- The Exclusive Agreements Foreclose a Substantial Share of the Market
- The Exclusive Agreements Have Deprived Rivals of Scale
- The Exclusive Agreements Do Not Result in Procompetitive Benefits
And the following about its control of the search advertising market:
- The Exclusive Agreements Foreclose a Substantial Share of the Market
- The Exclusive Agreements Allow Google to Profitably Charge Supracompetitive Prices for Text Advertisements
- The Exclusive Agreements Have Allowed Google to Degrade the Quality of its Text Advertisements
- The Exclusive Agreements Have Capped Rivals' Advertising Revenue
In other words: guilty, guilty, guilty. The judge was also unamused by Google's failure to preserve chat messages:
The court is taken aback by the lengths to which Google goes to avoid creating a paper trail for regulators and litigants. It is no wonder then that this case has lacked the kind of nakedly anticompetitive communications seen in Microsoft and other Section 2 cases.... Google clearly took to heart the lessons from these cases. It trained its employees, rather effectively, not to create "bad" evidence.
Mehta declined to sanction Google for this behavior, but only because it wasn't worth it. They lost the case easily with or without the evidence of internal communications.
It's notable that this case wasn't brought by Joe Biden's administration. Bill Barr and an all-star cast of red states filed the antitrust suit in late 2020, most likely because Trump and other conservatives were convinced Google was censoring them and taking down their ads. If this had ended up being the basis for the suit, it most likely would have lost. Luckily, Joe Biden took over a few months later, and his Justice Department filed a normal, meat-and-potatoes case rather than the bizarre cry for retribution that Trump's people probably would have pursued.
In any case, this isn't nearly over. Next the judge has to announce what price Google will pay, and then Google will surely appeal. Give it a few more years.