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Second Google-Sponsored Legal Report Argues Government Would Lose Antitrust Case
Google is playing a sophisticated form of “head games” with antitrust regulators. A second legal report-cum-brief (embedded below) has appeared. It argues that antitrust challenges against Google are likely to fail because Google’s critics’ arguments lack legal merit and/or make little sense from a policy perspective.
The report was written by lawyers from the Ammori Group, “a law firm and Internet-law consulting practice whose clients include Google Inc.”
A Shrewd “PR Campaign” by Google
Last week a report by UCLA Law Professor Eugene Volokh literally made the case that the US First Amendment precludes any claim against Google under antitrust law. That document was structured and read like a formal brief submitted to a court. However the court in this instance is the “court of public opinion” where the “public” consists of policy makers, regulators and legislators.
Google is engaged in what appears to be a very sophisticated and shrewd PR campaign, having lawyers preemptively argue the antitrust issues in public and thereby alert those who would bring formal antitrust claims that their cases are all but sure to fail.
It’s akin to an athlete trying to “psych out” an opponent before a big match. The initiative is intended to create doubt (and fear) among those lawyers who would be on the other side that they risk failure by proceeding against Google. This is not to imply that the substantive legal arguments presented are not persuasive — they are. That’s the point.
If You Can’t Compete … Litigate
The lengthy new document by attorneys Marvin Ammori and Luke Pelican takes principal aim at two related targets: the notion that the public would benefit in any way through regulation of Google and critics’ potential antitrust remedies. It essentially says that Google’s critics are all self-interested competitors arguing the public interest to benefit themselves. However antitrust law doesn’t protect the interests of individual competitors but competition generally to safeguard the public interest:
This article concludes that the cures proposed by the competitors are worse than Google’s alleged disease. The proposed remedies might benefit the short-term economic of Google’s competitors . . . but benefiting competitors is not the goal of antitrust law. The goal of antitrust law is to promote consumer welfare, competition, and innovation. The proposed remedies, however, would do the opposite: harm consumers, impede competition, and stifle innovation.
The remedies would invite government agencies and technical committees to second-guess and evaluate both mundane and game-changing engineering and user- interface decisions regarding Google Search, reverse long-standing fair use principles rooted in constitutional requirements, and empower competitors to litigate rather than compete against daily innovations and disclosures by Google.
Dismantling the Remedies One by One
Using case law and public policy arguments, the Ammori report then lays out and seeks to dismantle each of Google’s critic’s would-be remedies, which the document groups under five headings. Here they are verbatim:
- Search Neutrality: inviting government to second-guess and reject algorithmic and manual changes to Google Search based on an elusive, ill-defined “neutrality” concept that neither agencies nor technical committees could effectively adjudicate.
- Ten Blue Links, not Universal Search: forbidding Google from presenting answers to search queries as both Google and its largest competitors have done since 2007, with results that deliver a mix of Web links, news links, places, maps, and images, rather than merely providing 10 blue links to Web sites, just as many search engines did years ago.
- Google-Specific Fair-Use Limits: forbidding Google from crawling and using others’ Web content while forcing Google to let others crawl and use Google’s content thereby inverting the fair-use doctrine, the trespass-to-chattels doctrine, and raising constitutional concerns.
- No Bidding: constraining Google’s ability to compete for acquisitions and exclusive partnerships, harming acquisition targets and consumers while favoring the most deep-pocketed competitors.
- Continuous Disclosure: requiring numerous ongoing disclosures, many of which Google already provides, and others that would enable spammers to manipulate Google’s search algorithms or empower its less innovative competitors merely to copy new Google products more rapidly.
Regulators Don’t Use “Scarce Resources” on Google
The report begins and concludes with the notion that it’s ultimately a waste of time and scarce resources for regulators (in the US) to pursue an antitrust case against Google:
In short, the FTC has better uses for its scarce resources than pursuing an inquiry or investigation that would merely raise the cost of one rival, Google, for the benefit of other rivals that have proposed unworkable and detrimental remedies for their novel theories of antitrust harm that is effected through “search bias.”
Both the Volokh brief and this new Ammori report are persuasive though I’m not sure they will prevent the FTC from bringing a case against Google. However if it comes, much of the legal research will already have been done.