Important reminders regarding the DOJ vs Google trial
As we enter the second month of the DOJ trial against Google, let’s revisit just how flawed this case is.
The case is being pushed by Google’s competitors, especially Microsoft.
The case is an effort by Microsoft to gain competitive advantage through government action.
– A “successful case against Google may help its competitors but harm consumers,” says Jennifer Huddleston of the Cato Institute. “The real question should not be if Google has been more successful than the alternatives, but whether it achieved this success through a superior product or anticompetitive means. Consumers choose Google largely because they consider it a better product, not because they have been manipulated into choosing it as their option for search. After all, one of the most popular search queries on Bing is consumers looking for Google, illustrating that it is not by force but through consumer choice that has led to its popularity.”
– “If customers prefer Google defaults, then the government is literally asking the courts to put companies ahead of consumers,” showcases Daniel Lyons of AEI. “Of course, search engines such as Bing could simply outbid Google for the right to be a default provider, and that’s perhaps the most amusing aspect of this case. While the case is styled as a quest to protect competitors from Google’s dominance, the primary beneficiary of a government victory would be Microsoft—an even larger tech titan. Microsoft has the resources to buy preferential placement for Bing. It hasn’t done so, which suggests consumer preferences for Google are strong enough—and switching costs are low enough—that rivals would not significantly benefit from similar arrangements.”
– The DOJ’s lawsuit against Google would protect competing search engines over consumers, writes CEI’s Jessica Melugin. “The aim of U.S. antitrust law should be to protect consumer welfare, but this case instead aims to protect Google’s competitors. If the DOJ is successful, it will be to the detriment of customers. Government putting its thumb on the competition scale might benefit search competitors like Bing and DuckDuckGo, but the DOJ is supposed to be looking out for consumers, not picking winners and losers in the marketplace.”
The DOJ is politicizing antitrust enforcement.
Decades of precedent hold that antitrust laws exist to benefit consumers. The DOJ is seeking to unmoor the law from these evidence-based roots, attempting to use antitrust law to achieve political aims.
– The DOJ’s case against Google is punishing Google for “being too popular”, writes Krista Chavez from NetChoice. “If the DOJ is successful in this case, the Biden administration will use a win to continue weaponizing its antitrust authority against American businesses. It will further adopt incredibly broad antitrust language within agencies like the FTC so it can push a progressive agenda, either overtly through legal actions or covertly via coercive actions.”
– “Antitrust enforcers claim they know better than consumers. Embracing the government’s viewpoint would transform antitrust law into a protection racket for the government’s preferred businesses,” writes Barbara Comstock, an attorney and former U.S. representative for Virginia’s 10th congressional district. “Market competition in all American industries produces better products and services for consumers, and as a result, consumers, not the government, choose which products succeed. There is no antitrust violation just because consumers significantly prefer one company’s superior product.”
– NetChoice’s Carl Szabo calls out Government officials–notably the DOJ’s Jonathan Kanter–for prioritizing competitors over consumers: “In this @BrookingsInst event with Biden’s DOJ and FTC antitrust progressives, Kanter actually said, “We’re going to enforce the laws in spite of how markets actually work.” What?! He on the record admits it—Kanter does not care about consumers’ influence and power in the marketplace. He is more concerned about shaping the economy in his own personal ideological frame, no matter what businesses you like, services you want, or products you prefer. Kanter then goes on to talk about the importance of protecting corporations over consumers.”
– “Reagan Wouldn’t Sue Google,” writes George P. Bush, former Texas Land Commissioner and grandson of George H. W. Bush. “The government must protect consumers from harm, and no company should be immune from appropriate penalties and remedies. Most of the costly lawsuits targeting tech companies, however, aren’t being initiated for those purposes. They have been launched because various businesses and politicians think successful companies are ‘too big.'”
It’s common for companies to pay for product promotion – just like a cereal brand might pay a supermarket to stock its products at the end of a row or on a shelf at eye level – making it easier for consumers to access the most helpful products and services
The DOJ mischaracterizes the role of search defaults despite consumers’ overwhelming choice to use Google and how easy it is to switch to search engines.
– “Google’s search agreements, like slotting fees in supermarkets, are not exclusionary,” explains CCIA’s Project DisCo. “Just as slotting fees are a common marketing practice and an efficient way to allocate shelf space, so are Google’s agreements to be the default search engine in web browsers for PCs, cell phones, and tablets. Furthermore, when considering the DoJ’s case, U.S. District Court Judge Amit Mehta found that such agreements are not exclusive on their face and don’t stop consumers from switching default search. Google’s market share responds to consumers’ preferences and choices. There is a reason why “google” is the top global search in Bing and the third top search in the U.S..”
– “[J]ust talking about defaults, I think the government’s going to have a lot of trouble,” says Michael Katz, Professor Emeritus at the Haas School of Business and the Department of Economics at UC Berkeley. “And if we’re going to have somebody as a default, we want a high-quality search engine. And I think there’s agreement on this as well, with the exception of people who care about privacy might disagree, but just in terms of general search for the average user, I think there’s no disagreement that Google’s the best search engine.”
– “It seems like DOJ faces a Goldilocks problem in its lawsuit challenging Google’s search default deals,” explains antitrust law professor Thom Lambert. “DOJ’s Goldilocks problem: If the benefits of scale for search engine quality go on indefinitely, as DOJ’s complaint suggests, then Google’s deals improve its product and constitute competition on the merits. If scale efficiencies max out at a size smaller than Bing, then Google’s deals aren’t depriving its rivals of the scale needed to compete effectively and thus aren’t anticompetitive. Only if scale economies end at just the right point—bigger than Bing but smaller than Google—can the government prove anticompetitive harm. That’s a pretty tough needle to thread.”
– Companies and consumers choose Google because it’s helpful, as explains Trey Price of the American Consumer Institute Center for Citizen Research. “Google’s dominance is not in debate, as the DoJ complaint notes, Google has become so synonymous with searching the internet that it has become a verb to do so in its own right. That popularity, however, does not constitute a crime. By prosecuting Google for its success as a search engine, the DoJ is ignoring consumers’ interests and choosing to protect competitors rather than competition.”