One month after a judge declared Google’s search engine an illegal monopoly, the tech giant faces another antitrust lawsuit that threatens to break up the company, this time over its advertising technology.
The Justice Department, joined by a coalition of states, and Google each made opening statements on Monday to a federal judge who will decide whether Google holds a monopoly over online advertising technology.
The regulators contend that Google built, acquired and maintains a monopoly over the technology that matches online publishers to advertisers. Dominance over the software on both the buy side and the sell side of the transaction enables Google to keep as much as 36 cents on the dollar when it brokers sales between publishers and advertisers, the government contends in court papers.
They allege that Google also controls the ad exchange market, which matches the buy side to the sell side.
It’s worth saying the quiet part out loud, Justice Department lawyer Julia Tarver Wood said during her opening statement. One monopoly is bad enough. But a trifecta of monopolies is what we have here.
Google says the government’s case is based on an internet of yesteryear, when desktop computers ruled and internet users carefully typed precise World Wide Web addresses into URL fields. Advertisers now are more likely to turn to social media companies like TikTok or streaming TV services like Peacock to reach audiences.
In her opening statement, Google lawyer Karen Dunn likened the government’s case to a “time capsule with with a Blackberry, an iPod and a Blockbuster video card.
Dunn said Supreme Court precedents warn judges about the serious risk of error or unintended consequences when dealing with rapidly emerging technology and considering whether antitrust law requires intervention. She also warned that any action taken against Google won’t benefit small businesses but will simply allow other tech behemoths like Amazon, Microsoft and TikTok to fill the void.
According to Google’s annual reports, revenue has actually declined in recent years for Google Networks, the division of the Mountain View, California-based tech giant that includes such services as AdSense and Google Ad Manager that are at the heart of the case, from USD 31.7 billion in 2021 to USD 31.3 billion in 2023,
The trial that began Monday in Alexandria, Virginia, over the alleged ad tech monopoly was initially going to be a jury trial, but Google maneuvered to force a bench trial, writing a check to the federal government for more than USD 2 million to moot the only claim brought by the government that required a jury.
The case will now be decided by US District Judge Leonie Brinkema, who was appointed to the bench by former President Bill Clinton and is best known for high-profile terrorism trials including that of September 11 defendant Zacarias Moussaoui.
Brinkema, though, also has experience with highly technical civil trials, working in a courthouse that sees an outsize number of patent infringement cases.
The Virginia case comes on the heels of a major defeat for Google over its search engine, which generates the majority of the company’s USD 307 billion in annual revenue. A judge in the District of Columbia declared the search engine a monopoly, maintained in part by tens of billions of dollars Google pays each year to companies like Apple to lock in Google as the default search engine presented to consumers when they buy iPhones and other gadgets.
And in December, a judge declared Google’s Android app store a monopoly in a case brought by a private gaming company.
In the search engine case, the judge has not yet imposed any remedies. The government hasn’t offered its proposed sanctions, though there could be close scrutiny over whether Google should be allowed to continue to make exclusivity deals that ensure its search engine is consumers’ default option.
Peter Cohan, a professor of management practice at Babson College, said the Virginia case could potentially be more harmful to Google because the obvious remedy would be requiring it to sell off parts of its ad tech business that generate billions of dollars in annual revenue.
Divestitures are definitely a possible remedy for this second case, Cohan said It could be potentially more significant than initially meets the eye.
In the Virginia trial, the government’s witnesses are expected to include executives from newspaper publishers including The New York Times Co. and Gannett, and online news sites that the government contends have faced particular harm from Google’s practices.
Google extracted extraordinary fees at the expense of the website publishers who make the open internet vibrant and valuable, government lawyers wrote in court papers. As publishers generate less money from selling their advertising inventory, publishers are pushed to put more ads on their websites, to put more content behind costly paywalls, or to cease business altogether.
The government’s first witness was Tim Wolfe, an executive with Gannett Co., a newspaper chain that publishes USA Today as its flagship. Wolfe said Gannett feels like it has no choice but to continue to use Google’s ad tech products, even thought the company keeps 20 cents on the dollar from every ad purchase, not even accounting for what it takes from the advertisers. He said Gannett simply can’t give up access to the huge stable of advertisers that Google brings to the ad exchange.
Google disputes that it charges excessive fees compared to its competitors. The company also asserts the integration of its technology on the buy side, sell side and in the middle assures ads and web pages load quickly and enhance security. And it says customers have options to work with outside ad exchanges.
Google says the government’s case is improperly focused on display ads and banner ads that load on web pages accessed through a desktop computer and fails to take into account consumers’ migration to mobile apps and the boom in ads placed on social media sites over the last 15 years.
The government’s case focuses on a limited type of advertising viewed on a narrow subset of websites when user attention migrated elsewhere years ago, Google’s lawyers wrote in a pretrial filing. The last year users spent more time accessing websites on the open web,’ rather than on social media, videos, or apps, was 2012.
The trial, which is expected to last several weeks, is taking place in a courthouse that rigidly adheres to traditional practices, including a resistance to technology in the courtroom. Cellphones are banned from the courthouse, to the chagrin of a tech press corps accustomed at the District of Columbia trial to tweeting out live updates as they happen.
