We’re wrapping up final discussions about some of the more obscure remedies, and Google briefly references the issue of advertisers gaming the system if they’re provided search data. “There’s lots of problems with this,” Google’s attorney says, including significant privacy problems.
Judge Mehta has been triaging some non-Google cases to continue past 5, and we’re now back, with Mehta questioning Google’s attorney.
Mehta’s going through a final round of remedies and asking for explanations. First up: a proposed ban on self-preferencing. Government attorney explains it’s focused on search in relation to the Play Store, on-device AI, and a few other products. “Does this mean that, say, let’s say tomorrow Google launches a new product that is... Gemini... Super-Gemini. Do you mean to say if Google launched Super-Gemini, they couldn’t use Google Search to ground it?” Attorney seems to suggest banning something like that might be reasonable, though he equivocates. He says if there’s “a better way to draft” the statute, “we’re all ears.”
Mehta is, again, asking for specifics about a plan to offer incentives to try alternatives to Google. “How does Google deliver that option?” he asks. The attorney’s answer, again: a committee will decide.
Moving on from Chrome acquisitions, we’re in the final section, starting with the state attorney. Michael Schwartz is arguing for an education campaign fund that would address “habit, inertia, and brand recognition” barriers that prevent rivals from attracting users and competing with Google. Mehta asks some practical questions: how much money should be put into the fund, and who decides what the campaign to make people aware of alternatives looks like? The attorney says at a high level, it would be Mehta — who doesn’t seem thrilled about that. “I assure you, I am not qualified to tell you what is a good marketing campaign and what is not,” he says.
Schwartz says a committee could handle the details; for now, he offers a somewhat muddled explanation of how much money Google might need to contribute, reaching up to nine figures. Mehta asks if the whole idea is legal, and Schwartz tries to cite an AT&T antitrust decision — Mehta doesn’t bite. “Can you point to any case where there is a directive to a monopolist to out of pocket make an expenditure?” he asks. “We’re talking about nine figures at least.” Schwartz says all he’s got is AT&T. “The power of defaults is real,” Mehta says, but “that’s a different question than whether I can legally grant the remedy you’re asking.”
We’re back to the DOJ, whose attorney is saying Google’s claim only it can steward Chrome is wrong — and that separating Google from Chrome will, conversely, let it evolve. He struggles to cite a specific legal case that would explicitly justify an order like a Chrome divestiture, but he says looking to the body of law on mergers could be useful, and while the judge can’t require Chromium employees to stick around, he could order financial incentives or other measures that would make Google fill any empty roles.
Google’s lawyer is making a long case against the Chrome sale — essentially arguing that nobody else has the pragmatic incentives to keep developing Chromium or the ability to maintain Chrome as competently. Any divested version of Chrome will be “a shadow of the current Chrome,” he says. “I don’t see how anybody would be better off.” Also, he says, 80 percent of Chrome users are outside the US, and they’d be affected by the divestiture as well.
Schmidtlein says not only is it not justified by the law, the tangible harms outweigh “speculative benefits” to the competitive landscape. There’s “voluminous evidence” Chrome succeeded through innovation.
Mehta says the outcome of this plan is “less speculative” than many of the other proposals, and “in some sense, it’s from a judicial standpoint, a little cleaner and a little more elegant and a little less speculative than some of the other remedies.”
We’re currently hearing from a lawyer for the state lawsuit against Google, and Mehta is drilling down on a fairly salient issue: will Chromium employees actually move from Google to whoever buys it? The attorney says it’s common industry practice for workers to come with a company. That might be a reasonable claim, but it’s not a hard rule — and if it turns out not to apply here, that’s a potentially big temporary hit to Chromium’s maintenance and all the browser makers that rely on it.
Mehta asks whether a Chrome buyer would need to demonstrate it was capable of maintaining the open source Chromium project that powers numerous other browsers. “There are very few that could actually demonstrate it today,” he says. The DOJ’s attorney says there could be a negotiation with the future buyer to ensure a commitment, and people who are currently working on Chromium at Google would come over to the new owner.