The Ninth Circuit confirmed my prediction by tossing one of the private antitrust class actions against Apple, which had challenged the lawfulness of the proprietary DRM technology Apple initially used for downloadable digital music.
In the ongoing saga of governmental antitrust investigations of Google, recent weeks have witnessed a new level of rhetoric and disingenuous use of the regulatory process to handicap, rather than promote, competition and innovation. The current case in point relates once again to search neutrality, but this time complaining rivals remarkably object to getting exactly what they’ve asked for over many years.
FairSearch.org is in denial. That is why its proposals should be rejected by antitrust enforcement authorities worldwide. Nothing distills the difference between the European and American approaches to competition law as much as this trend-setting investigation.
Deconstructing the antitrust analysis applied by the FTC reveals the daunting task it faced in seeking to hold Google accountable for monopolization. The decision to fold-up the agency’s tent represents an admirable instance of prosecutorial restraint by a Commission that had been very publicly hounded by Google’s rivals.
No one can say with any seriousness that Google has captured a large share of Web search, and search advertising, with anything other than smarter software writers and more refined product developers. It simply built a better mousetrap. The EU’s challenge is that reality does not support the amorphous and transparently biased charges leveled against Google by rivals who have been unable to top it in the marketplace.
That Google competitors do not like that the FTC will not sue for search monopolization is sour grapes, rather than a failure of will by the antitrust agencies. Governmental prudence toward search neutrality represents wisdom, not capitulation.
Google faces a moment of truth in the coming weeks over a lengthy US probe into potential abuse of its Internet search dominance.
With some educated guesses, knowledgeable observers can assess whether an FTC prosecution of Google would succeed. Others may (and do) differ, but this author believes an FTC monopolization case — or a “pure” Section 5 case — against Google would be a really bad idea.
The operative question remains whether whatever Google is charged with having done, or may do in the future, respecting its display of Web search results should be considered exclusionary conduct for antitrust purposes. The answer to date is a resounding “No.”
The current pas de deux between politicians and commentators over whether the FTC should sue Google under the antitrust laws may not be right, but is completely unexceptional in Washington, DC.