US v Google kicked off in Washington DC on September 12. The US justice department accuses Google of monopolistic actions in the sphere of online search, including paying billions to keep rivals at bay, thus stifling competition and innovation.
Representing the department, senior trial counsel Kenneth Dintzer said the case concerns the very “future of the internet”.
It is a trial at least three years in the making, having been filed by the Trump administration government, and concerns actions taken by Google since 2010, so don’t expect a speedy presentation of the facts or a ruling soon. The case is expected to run at least 10 weeks, with the US government laying out how Google’s payments to device makers, browser builders and wireless providers keep it unfairly top of the pops.
Kenneth Dintzer, the department’s lead counsel, said in court that “Google pays more than $10bn per year for these privileged positions”, arguing that its contracts “ensure that rivals cannot match the search quality ad monetisation, especially on phones”, according to an Associated Press report. Dintzer continued: “Through this feedback loop this wheel has been turning for more than 12 years. It always turns to Google’s advantage.”
Present and past executives of Google and parent company Alphabet will be called to testify, and Google is expected to counter that its dominance is down to simple user preference in a busy and free market.
Google actually published a blog post outlining its position on the fight a few days ago, headlined “People use Google because it’s helpful”. The article was attributed to Kent Walker, Google’s president of global affairs.
Its stance is essentially that paying for distribution — and prominence — is a standard, effective marketing tactic, and that users can switch their default with a few quick taps.
Filed charges
Walker is likely to prove a vital weapon in this battle, not least because he has arguably been on both sides of this fight, even if he wouldn’t put it in those terms. Twenty-five years ago Walker was deputy general counsel for Netscape — an internet browser forerunner that was arguably muscled out by Microsoft.
In 1998, the US justice department filed charges against Microsoft regarding exclusive dealing, monopolistic behaviours in the operating systems market, and attempted monopolisation of internet browser markets.
Publications such as the New York Times and Financial Times, have pointed out parallels between this trial and the 1998 antitrust trial US v Microsoft, the last time the US government tackled a big tech firm over anticompetitive behaviour.
Reuters, for example, says this trial can be ‘seen as a battle for the soul of the internet’, which is certainly not lacking in drama
There is a lot of overlap, and by the Times’ characterisation this case “borrows heavily” from that one. But the world was a very different place in 1998, with iPhones still most-of-a-decade away. Google itself was a new baby search engine, overshadowed by Yahoo.
At the time Microsoft, under the leadership of Bill Gates, loomed large in the new agenda, particularly in the US where the eight months of testimony kept newspapers and their readers enthralled. Technology and economics reporter Steven Lohr writes that the Times “gave it the kind of day-to-day coverage ordinarily reserved for very few courtroom dramas over the years, like the OJ Simpson trial”
Nowadays it is hard to imagine that US v Google will get more eyeballs than Tuesday night’s iPhone 15 launch, despite the stakes, which are considerable. Reuters, for example, says this trial can be “seen as a battle for the soul of the internet”, which is certainly not lacking in drama.
In 1999 judge Jackson issued a finding of facts including that Microsoft’s dominance in some spheres fit the monopoly criteria, and had acted to counter threats to its monopoly. In mid-2000 the district court thus ordered the break-up of Microsoft into two separate companies, dividing software from operating system.
Of course, we know that was not to be. Microsoft appealed, and its appeal — the break-up directive, not the findings of fact — was ultimately upheld. There are some details I am skipping over here, but it is contemporaneous to Shrek, Bratz Dolls and Bill Clinton, so I’ve really already given it more than its fair share of words.
Still, regulators worldwide will be watching closely. The EU has been leading the regulation-of-big-tech charge now for a few years, but there have been global attempts across many jurisdictions to fight what some see as power creep and outright anticompetitive behaviour by the tech giants.
Given the present landscape of big tech, the plethora of players and manufacturers, and the sheer significance of these types of corporations, I am not sure there is the same clear and — crucially — winnable case to be made for one giant abusing its position.
I am thankful I am not a legal commentator, or — worse — the judge who has to weigh the mess to come. And, as with Microsoft, we would see appeals if the case goes against Google.
If the US regulators fail to make their case though, the consequences will be a significant blow to their reputation, and the perception that they can regulate big tech in their own backyard — the very birthplace of big tech — to anything like the degree of pushback in the UK and EU.
• Thompson Davy, a freelance journalist, is an impactAFRICA fellow and WanaData member.
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