Most Legal Experts At Antitrust Conference Appear Skeptical Of Case Against Google

google-legal-lawI was asked to speak about the evolution of search and offer some of my thoughts about its future at a conference of legal experts and government officials at George Mason University Law School in Virginia. The conference was the school’s “Second Annual Conference on Competition, Search and Social Media.”

FTC and Google in the house

Other than me the speakers were either practicing lawyers, law professors or people who work in Washington at places like the US Federal Trade Commission (FTC). These are some of the same people deciding whether or not to bring an antitrust case against Google. (The FTC has hired a high profile lititgator in preparation for a potential case.)

Several people from Google were also in attendance, including Google’s Chief Economist Hal Varian and Adam Kovacevich, who is Google’s DC-based spokesman on government and policy issues.

I unfortunately missed a panel at the end of the day entitled “Are there workable remedies for search engine bias?” Beyond wanting to hear the discussion the noteworthy thing about that panel is that it featured Marvin Ammori and Eugene Volokh, both of whom wrote extensive reports/briefs defending Google and laying out why antitrust claims against the company would likely fail.

We covered both documents earlier:

Considerable skepticism about success against Google

Overall I was very surprised at the skepticism that speaker after speaker expressed about the success of a potential antitrust case against Google. Several speakers reviewed past major antitrust cases against GM, IBM and Microsoft and essentially said those cases were largely mistakes that failed to recognize the dynamism of the market and ultimately wasted company and government resources.

I would have expected a much more evenly divided group.

While many legal experts conveyed discomfort with Google’s power and size, the large majority of panelists during the sessions I attended argued that antitrust rules either don’t fit the situation or wouldn’t legally apply or that remedies are problematic and largely unworkable. Echoing the earlier discussion about GM, etc., there was also a recognition of how dynamic and unpredictable the technology markets are today.

Markets just too “dynamic” to justify intervention?

In general about 70 percent to 80 percent of the speakers were skeptical of success against Google or thought it was simply inappropriate to apply antitrust rules to Google’s situation. A minority of speakers argued that the rules would apply and that case law did provide a cause of action against the company. Others scholars expressed the sentiment that the government has an interest in protecting competition by enabling smaller companies to succeed and were critical of the “markets are too dynamic” attitude widely expressed.

I have always been doubtful about the success of any “search bias” case against Google and especially dubious about how any remedy might work. After attending this conference I’m now of the opinion that the FTC and US would have a legal mountain to climb in an antitrust case against Google that uses “search bias” or “search neutrality” as the core of its case. Yet those sorts of assertions are largely the basis of the various complaints filed in the US and Europe against Google.

Related Topics: Channel: Industry | Features & Analysis | Google: Legal | Legal: Antitrust

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About The Author: is a Contributing Editor at Search Engine Land. He writes a personal blog Screenwerk, about SoLoMo issues and connecting the dots between online and offline. He also posts at Internet2Go, which is focused on the mobile Internet. Follow him @gsterling.

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  • http://twitter.com/SeanFlaim Sean Flaim

    In part, that was somewhat due to the nature of the forum you were in.  George Mason is the intellectual home of libertarianism, which tends to advocate less (or no) intervention in the workings of the market.

    I honestly thought Frank Pasquale made one of the more important observations of the day.  As people continue to argue against antitrust intervention in markets, it will increase the demand from people to move from antitrust’s more fluid regulatory tools to more old-fashioned command-and-control regulation.  While libertarians would argue that both types of regulation are bad, one is most certainly not as bad as the other.  Most politicians (and their constituents) want to be protected from the market far in advance of when it fails, rather than afterwards as libertarians would prefer.

    That said, no matter what ones’ leanings are on the matter, a general antitrust case against Google appears weak.  I suspect that any litigation which may be brought will focus on some narrow issues of anti-competive behavior rather than on amorphous concepts like “search neutrality.”

  • http://www.facebook.com/people/Jack-N-Fran-Farrell/100002337622505 Jack N Fran Farrell

    Having spent 12 years in Fairfax County, I know that their are many libertarians in the area, some in Congress. Spending money on outside ‘investigators’ will come under scrutiny, wasting lots of bureaucratic time, and more importantly, prestige. Who in the DoJ wants more oversight right now.

  • http://twitter.com/ferkungamaboobo ferkungamabooboo

    I’m not sure it was just Libertarian bias — any review I’ve read of the Microsoft case shows that it doesn’t quite jive with legal precedent in the US (other countries might be different, but I don’t see Apple being forced in the same way in Europe with regard to Safari or iTunes). 

    I’m partial to anti-monopolistic or even -oligopolistic readings of the tech industry: there’s limited barrier to entry, tons of competition (especially in niches), and Google’s acquisitions tend to be tangential rather than directly anti-competitive in search.

    Even advertising isn’t oligopolistic, with most major destination sites like Bing, Reddit, Twitter, Facebook, and LinkedIn running their own self-serve ads; individual sites probably get higher rates on the whole from personal rather than AdSense advertising.

    I dunno. I wouldn’t blame the bias of the speakers or conference or politicians or bureaucrats, but of the precedent set in this country, especially if arguing in comparison to the EU (who are still having trouble finding much themselves).

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