Judge will face remedy challenge in Google antitrust case
Remedies in the Google online search antitrust case could include eliminating the company's use of distribution contracts that cemented Google as a default setting.
Google's loss in the antitrust case brought by the U.S. Department of Justice and multiple states will soon enter a new phase as the court considers injunctive relief to address Google's monopoly over the online search market.
In the ruling issued by Washington D.C. District Court Judge Amit Mehta, he said Google's dominance in online search has gone unchallenged for years. Google averaged 80% of all search queries in 2009, a percentage that jumped to 95% on mobile devices by 2020. Meanwhile, the second-place search engine, Microsoft's Bing, saw roughly 6% of all search queries.
"Google is a monopolist, and it has acted as one to maintain its monopoly," Mehta wrote in his opinion.
Google is a monopolist, and it has acted as one to maintain its monopoly.
Amit MehtaWashington D.C. District Court Judge
While Google could appeal the decision, Mehta will soon begin considering ways to undo Google's control over online search. The injunctive relief process could take a few weeks to years, said Carl Hittinger, antitrust and competition practice national team leader at law firm BakerHostetler.
He said Mehta will have to balance fixing the anticompetitive issue while continuing to support innovation. Part of that process will include examining the online search market and any new challengers to Google's dominance.
"The relief needs to be fashioned in a way where innovation is preserved and encouraged, and illegal conduct is stopped," Hittinger said.
The issue and potential remedies
Mehta ruled that while Google's engineers developed a high-quality search engine, the company had an advantage over rivals by entering into distribution contracts with mobile device manufacturers, browser developers and wireless carriers to be placed as the default search engine.
Ultimately, Mehta ruled that Google violated Section 2 of the Sherman Act, which makes it unlawful for companies to monopolize or conspire with others to monopolize trade and commerce.
"These partners agree to install Google as the search engine that is delivered to the user right out of the box at key search access points," he said.
In previous monopoly cases, courts have taken different approaches to ensure fair competition. For instance, AT&T was broken up by a court decision, leading to the creation of several smaller companies. In the DOJ's case against Microsoft, the company fought against a breakup and settled with the DOJ in 2001. The agreement aimed to make it easier for companies to integrate with its Windows operating system.
Hittinger argued that in the Google antitrust case, breaking up the company would be "ill-conceived and over-reactive."
"There are other ways of dealing with issues," he said.
One aspect Mehta will likely have to consider is Google's distribution contracts. Mehta will need to consider not only whether it addresses concerns with Google, but also the impact to other companies involved. Hittinger said "slow and steady" will be the way forward to address the anticompetitive concerns.
"If he says the contract is illegal, what impact will that have on the company that has the contract? What impact will that have on consumers? He has to look at all that stuff; it isn't that simple," he said.
Joe Coniglio, director of antitrust and innovation policy at the Information Technology and Innovation Foundation, said getting rid of the distribution contracts would likely be the remedy rather than breaking up Google.
If Google appeals Mehta's decision, Coniglio said Google might capitalize on the lack of analysis behind whether its behavior harmed consumers. Additionally, he said Google could also point to the emergence of new competition since the DOJ filed its case in 2020. OpenAI, for example, recently announced its own search engine offering, SearchGPT.
Mehta "claimed in the opinion that new technologies like artificial intelligence really did not pose a competitive constraint on Google," Coniglio said. However, he said that it overlooks ways OpenAI and other new companies are expanding options for accessing information.
Indeed, Mehta's decision constituted a "static view of the market" and didn't address how generative artificial intelligence products could affect the market for search services, said Jennifer Huddleston, senior fellow in technology policy at the Cato Institute, in a statement.
"It is unclear what the potential remedies might be or how they will impact the consumer experience," she said.
Ruling draws attention to big tech dominance
Coniglio said the implications of the antitrust ruling still cannot be understated. He said the court's opinion sends a signal "not just to the tech companies but also to corporate America more generally that the government can really bring these major monopolization cases and win."
Nicole Gill, co-founder and executive director of digital justice advocacy group Accountable Tech, said in a statement that the court's decision marked a "major victory for the antitrust movement" by challenging Google's business practices and scrutinizing those of other big tech companies.
"This is a significant step toward real accountability from tech companies, which have evaded regulation for decades, boding well for the future of antitrust enforcement, greater consumer protection and a better Internet for all," she said.
The ruling's move toward addressing big tech's dominance will help break the "stranglehold that monopolies like Google have over the Internet," but it's only the first of many steps, said Evan Greer, director of digital advocacy nonprofit Fight for the Future, in a statement. Greer called on Congress to pass antitrust reform and data privacy legislation to comprehensively rein in tech giants.
"Legal action alone won't be enough," she said.
Makenzie Holland is a senior news writer covering big tech and federal regulation. Prior to joining TechTarget Editorial, she was a general assignment reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.
