A high degree of competition among generative AI firms will not resolve concerns that Google could circumvent any remedies imposed by a US federal court to address its illegal monopoly in the Internet search markets, an economic expert testifying for the US Department of Justice said today. As the three-week long evidentiary hearing in the DOJ’s remedy trial against Google wrapped up today, US District Judge Amit Mehta asked parties to submit briefs on the data disclosure requirements Google has to adhere to under the European Union’s Digital Markets Act.
A high degree of competition among generative AI firms does not resolve concerns that Google can and will circumvent any remedies imposed by a US federal court to address its illegal monopoly in the Internet search markets, an economic expert testifying for the US Department of Justice said today. As the three-week evidentiary hearing in the DOJ’s remedy trial against Google wrapped up today, US District Judge Amit Mehta asked parties to submit briefs on the data disclosure requirements Google has to adhere to under the European Union’s Digital Markets Act.
Dr. Tasneem Chipty, an expert witness for the DOJ and a coalition of 49 states and US territories, was back on the witness stand as the government presented its rebuttal case. Yesterday, Google rested after presenting its case-in-chief (see here).
"The question isn't whether there is a high degree of competition among firms in GenAI [space]," Chipty said during examination by a DOJ attorney. "The question I was looking at — and I think it's a serious question — is whether Google could use GenAI as a circumvention to promote Google search through the Gemini app and that's not resolved by observing that the GenAI space is highly competitive."
"If anything, if Google is allowed to promote Google Search by paying for distribution through the Gemini app, I would expect the pains in general search to continue," the expert said.
Chipty said that if Google's expert is correct that there is vibrant competition in the GenAI space, then there may even be some risk to competitors in getting their GenAI apps distributed because of Google's monopoly.
US District Judge Amit Mehta queried the expert about the risk of Google circumventing any remedy order he designs.
"So, is it still your view that the circumvention risk is great, even though we've seen testimony that... a very low percentage of people will actually take advantage of the connection between the Gemini app and search?"
"Yes, I think so, because those are numbers today," Chipty said.
The expert said one takes seriously that generative AI is a nascent technology which we are just at the beginning of, and even if some alternative apps are gaining distribution, "it's not predictive of tomorrow, especially if Google's incentives change."
"They can use their search monetization advantage to essentially rerun its playbook to compete in apps," Chipty said.
Cameron Gower, counsel for the DOJ, asked if the Gemini app is relevant as to how it appears today, or how it might appear during the course of the remedies.
The expert said, "this is about the future... and over the course of the remedial period and thereafter."
With nascent technology or nascent products, it is really hard to place too much on the numbers today or in recent past because it is "highly evolving," she said.
Gower asked whether, in general, corrective remedies are sufficient for the kind of anticompetitive conduct Google has engaged in so far.
"No, not in my opinion," Chipty said. "That's because the conduct has been ongoing for many years, and because the court found that the conduct significantly harmed competition. And of course, because the record in this case suggests that it won't be easy or quick for rivals to catch up to where they would have been."
— Google’s cross-examination —
John Schmidtlein, counsel for Google, grilled the government expert about her predictions for how nascent technologies will play out in a market.
“But we're not talking about a nascent technology here. Are search engines nascent technologies?” the Google lawyer asked.
Chipty said she is talking about the kind of uncertainty that one faces when they are looking at a forward-looking merger with nascent technologies.
“Of course, this is not the point. The point is that you've got over 10 years of a competitive process that never got to play out. So, sitting here after the fact, it is very hard ... and I think every expert has said it is very hard to figure out what would have happened over this complex period of time,” she said.
Schmidtlein said Google has presented a “mountain of evidence” as to how the tech giant’s contracts were negotiated, what parties were trying to get distribution, and the types of distribution deals they were getting. “And yet neither you, nor Dr. Winston, nor Dr. Baker — none of you — have offered any opinion about what the but-for world looks like in this case, correct?”
“Not with the specificity that you're asking about,” the DOJ expert said.
“With no specificity whatsoever, correct?” Schmidtlein said.
Chipty replied that one can go back and study the effect of the conduct on the process, not the actual outcomes.
Schmidtlein asked if Chipty has seen any internal Google documents or comments that suggest Google's strategy with respect to the Gemini app is to turn it into a search access point.
The DOJ expert said she hasn’t specifically seen that, but she has come across some evidence that Google has studied whether searching on Gemini “cannibalizes” searching on its general search engine.
Schmidtlein asked whether Google's proposed remedy encompasses restrictions on the ways in which Google can promote and distribute the Gemini app. Chipty agreed Google’s proposed remedy has some aspects to it but that plaintiff's remedies, even with respect to non-generative AI considerations, go further.
“And the point is that for the same reasons those go further, the court might consider extending that treatment also to Gemini,” the DOJ expert said.
“If they go further, they would ban Google from being able to compete for distribution of the Gemini app, correct?” Schmidtlein asked.
Google could still compete, Chipty said.
— Judge wants DMA briefing —
Trial ended today, with DOJ, the states and Google scheduled to return to court on May 29 and 30 for closing arguments.
Parties are expected to file post-trial briefs next week.
At the end of the hearing, Judge Mehta said, “So there's been a lot of talk about the DMA throughout these proceedings at a relatively high level. It would be helpful to me just to have some greater insight as to what the data disclosure requirements are under the DMA.”
Last week, Google CEO Sundar Pichai was quizzed about a provision in the EU’s Digital Markets Act that requires Google to share click and query data with third parties (see here).
“Yes, it’s very different from how it is in the plaintiffs’ proposal,” Pichai said, while also confirming that Google announced in March 2024 that it would comply with the provision.
Pichai had testified that overall, the scope of the DMA is “much, much narrower... compared to the [DOJ’s] proposal, which is so broad [that] it's basically, in its entirety, asking us to give every aspect of our search ranking, search quality, signals, everything if you put them together. It’s our entire IP.”
Today Mehta cited exhibits entered into evidence about DMA, and said, “if you all could either work on a submission or include it within your submissions, to me so that we could have a little bit more detail on that, that would be useful to have that knowledge.”
“Look, it's just a data point. Don't read anything into the request,” Mehta said.
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