US District Judge Amit Mehta's ruling in the government's Internet search monopolization lawsuit against Google banks on hope that an "arms race" among artificial intelligence companies will disrupt the tech giant's monopoly, even as he hedges his optimism that "AI may someday fundamentally alter search, but not anytime soon." Mehta's order, which doesn't force Google to sell Chrome — something that many Google critics hoped for — has been criticized by rivals pushed out of the market by the tech giant. While Mehta pledges to revisit his remedy order if competition isn't substantially restored, it's often overlooked that antitrust law enforcement lags the pace of technology by years, and he may not have the same market to remedy years from now when smaller competitors come complaining of antitrust injury.
When Google dodged a potential antitrust lawsuit by the US Federal Trade Commission more than a decade ago, then-Commissioner Edith Ramirez said “the evidence in this case simply did not support taking that drastic step." Those words didn't age well because, seven years later, the tech giant was sued by the US Department of Justice for illegally monopolizing the Internet search markets.A 230-page order by a Washington, DC, federal judge this week on whether Google must be forced to hive off its Chrome browser displayed similar skepticism.
US District Judge Amit Mehta said Google won't be required to divest Chrome. Nor will the court include a contingent divestiture of the Android operating system in the final judgment. "Plaintiffs overreached in seeking forced divesture of these key assets, which Google did not use to effect any illegal restraints." Google dodged a Chrome divestiture for one key reason, Mehta said: "GenAI changed the course of this case."
Mehta's opinion has angered critics of Google who were vocal in calling for a corporate split. Letting Google keep Chrome, which is one of its prized assets and worth tens of billions of dollars, while imposing only behavioral remedies is seen as a cop-out and allowing the tech behemoth status quo as an entrenched monopolist. Critics argue the order pays lip service to Mehta's findings from August 2024 that a package of remedies is necessary to address the interlocking, mutually reinforcing dynamics of the search market controlled by Google.
By imposing several behavioral remedies — essentially adopting Google's remedy proposal in its entirety — the judge is uncharacteristically optimistic that market forces will disrupt Google's market power.
Mehta even leaves the door open to revisiting the remedies if they do not work.
"So, for now, Google will be permitted to pay distributors for default placement. There are strong reasons not to jolt the system and to allow market forces to do the work," Mehta said.
Specifically, Google can't enter into or maintain any exclusive contract over the distribution of Google Search, Chrome, Google Assistant and the Gemini app. Such behavior violates the Sherman Act. But Google can continue making payments to distribution partners for preloading or placing Google Search, Chrome or its GenAI products. That is competition on the merits.
Mehta talks about exercising a "healthy dose of humility" because judges must remain aware that markets are often more effective than the heavy hand of judicial power when it comes to enhancing consumer welfare.
"Still, 'judges must be open to clarifying and reconsidering their decrees in light of changing' — or unchanging — 'market realities'," the judge said. "The court is thus prepared to revisit a payment ban (or a lesser remedy) if competition is not substantially restored through the remedies the court does impose."
This is a positive step for the DOJ and states who sued Google nearly five years ago. However, there is a problem in that complex antitrust litigation takes a long time, especially watershed litigation such as the Google search monopolization case.
So, while Mehta has left the door open for the DOJ to revisit the remedies, the downside is there will be no antitrust enforcement for many years. By the time, a court is actually able to impose a remedy, the world may have moved on. It doesn't help that Mehta wasn't as lightning fast as US District Judge Harold Green, who implemented the break up of AT&T decades ago by getting to trial quickly.
— Banking on AI displacing search —
Mehta's opinion notes how much has changed since the end of the liability trial in November 2023, though some things have not.
Google is still the dominant firm in the relevant product markets. "No existing rival has wrested market share from Google. And no new competitor has entered the market. But artificial intelligence technologies, particularly generative AI (“GenAI”), may yet prove to be game changers," the judge wrote.
The judge may have a point.
Human behavior with digital platforms is changing. Internet search as we know it may become a less important market, just like basic telephone services phased out once individuals could carry a phone in their pockets.
"The emergence of GenAI changed the course of this case. No witness at the liability trial testified that GenAI products posed a near-term threat" to general search engines, Mehta wrote.
Millions use GenAI chatbots such as ChatGPT, Perplexity and Claude to look up information they previously sought through Internet search. GenAI chatbots are not yet close to replacing search engines, but the industry expects developers to continue to add features to GenAI products to perform more like general search engines.
While GenAI products may be having some impact on search engine usage, they haven't eliminated the need for them. In fact, Mehta acknowledges that AI Overviews has potentially strengthened Google’s position in the general search engine market, with Google Search queries in the US having increased 1.5 to 2 percent.
But when he issued his liability findings in August 2024, Mehta had doubts over how quickly AI can change the market, which he echoed in this week's order.
"AI may someday fundamentally alter search, but not anytime soon," the judge said a year ago.
"The advent of artificial intelligence (AI) has not sufficiently eroded barriers to entry — at least not yet... Currently, AI cannot replace the fundamental building blocks of search, including web crawling, indexing, and ranking," he said in 2024.
Mehta characterizes the rise of new AI competitors as an "ongoing GenAI arms race" in which Google will have to continue to invest billions in a highly competitive space just to keep up.
"In this moment of all moments, Google cannot afford to abandon or scale back its investment in search technologies, given the importance of grounding to GenAI products and the integration of GenAI into Search,
through AI Overviews and AI Mode, which is likely only to deepen," Mehta said.
In saying so, he takes a more sympathetic stance to Google's potential challenges going forward in facing off against AI rivals than competition harmed over decades while still holding an edge over others in the market.
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