Antitrust Festivus: The Airing of the Grievances against Google

Last week was the deadline for third party amicus briefs. We heard from a lot of businesses mad at, and supportive of, Google.

Ok, I’m going to interrupt your regularly scheduled Meta antitrust trial to bring you some information from the OTHER big antitrust case going on in the same courtroom, the Google search trial.

Last week was the deadline for briefs from third parties, known as ‘amicus briefs.’ Who files these briefs? Well, anyone who wants to that has access to some legal capacity, often affected parties, but also experts who want to have their say on the matter. In high-profile cases, like big Supreme Court cases, there are lots of amicus briefs. In lower profile ones, there are fewer. This case has a bunch of briefs, because the decision around Google affects a lot of third parties. Such briefs can be quite helpful in terms of educating the judge on market conditions and law, though there’s also quite a bit of corruption in that a lot of briefs are authored by people with an undisclosed financial relationship to the parties.

In four months, Judge Mehta will be putting out his plan for Google, and these briefs will likely factor into his thinking. To put it differently, Mehta is about to restructure the internet and key parts of the corporate world; here’s what the internet and that world think about that. In other words, this is Google search festivus, the airing of the grievances.

I’m going to divide up these briefs into a few sections. The first are companies who want Google disciplined.

Lots of companies have testified in this trial, many of whom want limits on Google’s various business activities. Two amicus briefs came in on this score, and they both represent many different firms.

• Y Combinator, the accelerator that helped found a bunch of famous companies (Airbnb, DoorDash, Dropbox, Instacart, Reddit, Stripe, Twitch, etc), filed in support of the government. The venture capitalist, which speaks for a lot of startups, is investing a lot in the next generation of search, which is “query-based AI solutions and AI-based agentic tools.” YCombinator wants to ensure Google doesn’t strangle those efforts by using the same tactics it used to thwart competition in search. Specifically, Y Combinator wants access to Google’s data sets, it wants to block Google from monopolizing AI, and it wants an anti-retaliation provision.

• The News Media Alliance, aka newspapers, filed a brief supporting the government. They want to stop Google from engaging in coercive behavior that forces publishers to let Google use their content for AI training. (“Today, the only way publishers can prevent having their content summarized in Google’s AI Overviews or AI Mode is also to block meaningful uses of their content in traditional search indexing and display.”)

Businesses That Benefit from Google’s Monopoly

Many amicus briefs are from Google’s partners who like getting money from Google, like Apple, which earns $20 billion plus a year from payments to put Google search as the default. These parties, though they differ somewhat, generally dislike the government’s remedy of stopping Google from paying for placement of its search engine.

• Apple’s brief is organized around the idea its VP of Services Eddy Cue put forward on the stand that Google is losing market share to generative AI firms and so killing the central agreement allowing Google to pay Apple tens of billions a year is unnecessary. (“Apple is particularly concerned about Plaintiffs’ total prohibition on Apple’s ability to receive compensation for non-exclusive distribution of Google Search.”)

• Motorola says that the remedy should kill Google’s deal with Apple, but allow similar deals with smaller plays who “comprise 30 percent or less market share.”

• Mozilla and Samsung have both filed briefs, but they are under seal as they presumably include confidential information.

• Anthropic, a generative AI firm partly owned by Google, filed an amicus along with Google lobby shops TechNet and Engine Advocacy. Anthropic argues against much of the proposed remedy, saying that generative AI is highly competitive already.

• Brave has an interesting amicus, arguing that it has a competitive search index that it licenses to generative AI firms. Forcing the syndication of Google’s index would undermine its business, so it recommends capping how much syndication Google would be forced to do. Notably, Brave also uses the open source Chromium resource provided by Google.

The Public Sector, Enforcers, and Unions

And then there is the public sector, which are non-businesses, so nonprofits, other government enforcers, and unions.

• The Federal Trade Commission filed a brief on privacy issues in the case. Google has argued that the proposed remedy would jeopardize user privacy, so the FTC went over the greatest hits of Google’s various privacy violations, including Google Buzz, deception around cookies and tracking, and illegally tracking kids on YouTube. The FTC argues that a technical committee as proposed can and should work to prevent privacy problems, and that the remedy as proposed would force Google to compete based on offering higher instead of lower privacy standards.
  
  More broadly, the FTC shows there’s nothing exotic about addressing data in a privacy protective way. “Commission has brought more than two hundred cases to address privacy and data security related concerns over the last three decades” and has a lot of experience with Privacy Enhancing Technologies (PETs) and privacy audits that would be like what the technical committee will do with Qualified Competitors.

• The Alphabet workers union has an amicus, and argues that the remedies should include anti-retaliation provisions, as well as protections for workers if there are divestments. It’s a Communications Workers of America shop, and CWA absolutely hated the AT&T break-up because the Baby Bells got rid of their unionized workers. (That was largely a function of labor law at the time, however, not the break-up itself.)

• Scholars and nonprofits do file briefs. One core question in this trial is how much discretion the court has to restructure Google’s business, and what the goal should be in doing so. My organization, the American Economic Liberties Project, filed a brief arguing that the judge must (1) end the monopoly (2) deny the fruits of the monopoly power and (3) prevent monopolization in the future. The brief goes through the case law to show that judges have wide discretion to accomplish these objectives. The target of this brief is the 2001 Microsoft decision, which imported a made-up standard from a textbook by a man named Herb Hovenkamp, who stated that judges can only stop the illegal conduct, but not go beyond that.

The Lobbyists

Finally, the last group. As with any monopolist, Google financed a lot of nonprofits and trade associations to echo its points, kind of like a puppet show. So I interpret many briefs as repeating of expanding on Google’s position. Here are some of them: Scholars of Law and Economics, the Center for Cybersecurity Policy and Law, James Cooper and Andrew Stivers, ‘bipartisan former antitrust enforcers,’ the Chamber of Progress, et al. The App Association, which filed a brief, is an Apple-funded group, in case you’re into variety.

Unfortunately, some of these include ‘scholars’ who don’t have to disclose what they get from Google, because judiciary panels have refused to force disclosures. For instance, Greg Werden, a former economist at the Antitrust Division for 42 years, filed an amicus with an explicitly section titled “The Remedy Should Not Be Designed to Terminate Monopoly.” He also argued that this case, which was carried forward by the Biden administration, is merely about Trump attempting to censor opponents. He has no explicit Google ties, but he writes for the Mercatus Center and the Information Technology and Innovation Foundation, both of which are Google shops. Certainly he’s ideologically aligned with Google, but we don’t know if there’s more than that.

And lawyers representing these different briefs don’t have to disclose much either. For instance, O’Mevleny & Myers lawyer Ian Simmons did the former enforcer amicus brief; he represented Google in the Play Store case.

A good illustration of the incestuous relationship among all these parties is Court Accountability amicus brief from the Epic case against Google, showing the various law firms working with academic filers represented Google. The flow of corporate-funded amicus briefs is a problem. In this case, it’s a way for Google to get around a lot of things: page limits on briefs, adversarial testing of facts, and also adversarial testing of expert witnesses.

I don’t think Mehta’s going to be fooled by the astro-turf filings, though some judges are. So there we go.

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