Google and the Division of Justice met one closing 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 either side 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 cures — a course of at the moment taking part in out in a separate DC District Court docket case over Google search.
Most of the arguments had been acquainted to any Google trial watcher. The DOJ argues Google used a collection of advert tech merchandise, significantly Doubleclick For Publishers (DFP) and the AdX trade, to strong-arm website house owners and advertisers. Google counters that it faces competitors from different sources and shouldn’t should lower offers with opponents. However the closing statements let Brinkema, who spent the trial’s early days asking witnesses to interrupt down complicated technical matters, push again on either side’s arguments — this time with a strong command of the information.
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 consumers and sellers for digital adverts, 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 of whether or not a coverage AmEx imposed on retailers unfairly suppressed worth competitors. The courtroom 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 normal to satisfy.
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 totally 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 through the trial on publishers and known as advert company witnesses fairly than advertisers themselves. DOJ counsel Aaron Teitelbaum stated publishers’ points with Google (like irritating ties between DFP and AdX) had been significantly good at highlighting anticompetitive conduct, that stemmed from Google’s entry to advertisers via its advert community, and that advert businesses — not their advertiser shoppers — had been those sometimes navigating Google’s merchandise.
She additionally requested how the DOJ would try to win if she finds a single, two-sided market. Teitelbaum stated that even in that situation, the courtroom can discover direct proof of monopoly energy the place Google does one thing it is aware of prospects gained’t like — like Unified Pricing Guidelines (UPR) that prevented publishers from setting greater 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 generally known as Verizon v. Trinko — which stated, very broadly, that Verizon wasn’t required to share its telecommunications community with AT&T. Trinko says underneath most circumstances, firms can refuse to cope with opponents. Google argues that its merchandise are already interoperable with different advert tech companies, and requiring extra of that interoperability by legislation 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 cases the place Google eliminated choices for customers in its advert instruments. However Brinkema appeared not sure of that argument, saying AdX specifically appears to be in direct competitors with different advert exchanges, and isn’t customer-facing in the way in which 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 would 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 doubtful 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 strains 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 may even exhibit that Google welcomed staff sharing ideas over e-mail.
However Brinkema stated that Dunn was “getting near the very vital argument plaintiffs have raised”: the truth that no person truly is aware of what executives had been considering in some instances, as a result of these chats are gone. “I feel you’re in just a little bit [of] harmful territory,” she warned.
