Three-Minute Legal Talks: The United States v. Google Case Explained
In what legal scholars are calling the biggest antitrust trial since the U.S. government’s 1990s case against Microsoft, the Department of Justice — along with dozens of states — alleges that Google has an unlawful monopoly on the search engine market.
Within U.S. antitrust law, a monopoly is not unlawful if gained through legitimate means, such as producing a superior product. This case, however, explores whether Google is holding onto it search engine monopoly unlawfully by excluding competitors.
In three minutes, Douglas Ross, professor from practice at the University of Washington School of Law, covers the DOJ’s case against Google and provides insight.
Read the Transcript
Douglas Ross: Hi, I'm Douglas Ross, and I'm a professor from practice at the University of Washington School of Law.
Three-Minute Legal Talks: Why is the United States suing Google regarding its search engine?
DR: At the tail end of the Trump administration, the U.S. Department of Justice sued Google with 11 other states. In the months after that, 38 more states joined that lawsuit. The Department of Justice and the states claim that Google has unlawfully monopolized the market for general search. In American antitrust law, it is not unlawful to have a monopoly if you gain that through legitimate means, by having a better product, for example, but it is unlawful to hold on to that monopoly by trying to exclude competitors. And the government says, Google you may have gained your monopoly lawfully, but you're holding on to it unlawfully by excluding competitors.
TMLT: What does the U.S. government claim Google did that is unlawful?
DR: The government claims that Google unlawfully excluded competitors through the agreements Google entered into with browser manufacturers and the Android phone agreements. So, on a computer, whether it's desktop or laptop, or on your Apple iPhone, a browser is preloaded, and the browser that Apple preloads — for example, the Safari browser — by default uses a Google search engine. That is an agreement between Apple and Google, that the Google Search machine will be used for the Apple browser Safari. On the Android side, if they want to preload any Google app on the phone, they must take a bundle of Google apps.
And there is a second agreement that the government points to, which is some of these phone makers have also agreed that they will make Google's search the exclusive search machine on their phone in return for large payments from Google. That's the behavior the government claims is unlawful on the theory that it excludes Google's competitors in the search field from getting on these devices.
TMLT: Is Google’s behavior unlawful?
DR: That's what Judge Mehta is going to have to decide in the lawsuit against Google. Fundamentally, he has to decide whether the agreements Google entered into cover so much of the market that it is virtually impossible for Google's competitors in the search field — primarily Bing, but there are a couple of other small others — from ever gaining the kind of toehold they need to become effective competitors against Google. Agreements to be the default search engine, in and of themselves, aren't unlawful, even exclusivity agreements of themselves aren't unlawful. The question is whether when you take all of this together, it forecloses Google's competitors from any chance of entering the field and succeeding.
TMLT: How might this case affect an average Search Engine user?
DR: The judge is going to have to decide whether Google's behavior has helped or hurt consumers. Google argues that it is the default search engine because consumers prefer Google. And that when given a choice, consumers choose Google. If that's so, then forcing Google to spin off its browser could hurt consumers, and perhaps imposing conditions on how Google does business might also hurt consumers.
But if the judge finds that the conduct complained of has stifled innovation and competition, from which consumers could benefit in the search field, then the judge is going to have to order relief that will benefit consumers and make their search experience better.