Federal judge largely sides with DOJ in finalizing remedy for Google search monopoly

WASHINGTON (CN) — A federal judge on Friday released the final terms of a remedial plan meant to address tech giant Google’s monopoly over internet search, just over three months after ruling the company can keep major parts of its multitrillion-dollar company.

U.S. District Judge Amit Mehta, a Barack Obama appointee, laid out the details in a 95-page opinion that sought to bridge the gap between the Justice Department and Google’s proposed final judgments by largely rejecting the company’s proposals.

“As has been true during much of this five-year-long litigation, the parties continued to see eye-to-eye on little, even with the benefit of the Remedies Opinion,” the Barack Obama appointee wrote, referring to the disagreements as “the devil rear[ing] its head.”

On Sept. 2, Mehta soundly rejected the Justice Department’s request to order the divestment of Google Chrome and Android to address Google’s dominance in the internet search market.

The decision marked a significant victory for Google, which pushed Mehta to issue a narrowly tailored remedy and reject the Justice Department’s wide-reaching remedy proposal.

However, he largely sided with the government regarding the need for Google to share its search index and user data — as well as certain search and search text ad syndication services — in order to assist potential competitors in matching the quality that Google had acquired via its illegal monopoly.

However, that remedy’s implementation has proven to be the largest point of contention between the parties.

Google had expressed concern that potential rivals could turn around and sell the data upon receiving it, and sought to place additional limits on who could receive its data, specifically proposing that the data be shared subject to a license that would prohibit competitors from sharing or selling the data.

Mehta reiterated the fact that, after he deemed Google had operated an illegal monopoly, it was necessary to “deny the defendant the fruits of its statutory violation,” by sharing its search index and user data.

While he generally agreed that the data should be shared subject to a license, Mehta modified Google’s proposal to incorporate some of the Justice Department’s objections.

First, Mehta added a condition to the licensing requirement that would allow qualified competitors to petition a Technical Committee — a body in charge of administering and overseeing the remedies implementation — for an exception.

He agreed that the license should prohibit a competitor from sharing or selling the data, but found “there is value in leaving slightly ajar the door to the possibility that some form of sharing or selling the data would be reasonable.”

In terms of search syndication, Mehta rejected Google’s proposal that it should be allowed to effectively veto certain syndication terms because a term or some combination is not deemed “ordinary commercial” terms.”

DuckDuckGo, a rival search engine focused on user privacy, argued in an amicus brief that Google’s proposal would allow the company to refuse to syndicate search results to privacy-focused search engines by saying a provision ensuring certain user protections is not “ordinary” to Google’s existing syndication agreements.

Mehta further rejected Google’s pitch that competitors who syndicate from Google be required to display their search results the same way Google does.

“For a qualified competitor — who, to reiterate, can only be certified if it can demonstrate a plan to invest and compete in or with the [General Search Engine] and/or Search Text Ads markets — becoming a Google clone or marketing itself as one seems an unlikely desire,” Mehta wrote.

Mehta addressed the parties’ differences regarding the Technical Committee, which he has made clear will be an “instrument” to assist the Justice Department in enforcing the remedies, and should not require any further judicial intervention.

He said that, while he is wary of acting as a referee over minute conflicts, he would still hear any significant objections Google may raise against the Technical Committee.

Mehta called the parties back to court on Oct. 8, where they sought to hash out terms for Mehta’s final judgment. The hearing revealed the large gulf between the parties’ thinking on how Google would share its search index, user data and search syndication services.

Justice Department attorney David Dahlquist urged Mehta to avoid placing too many limitations on who could become a qualified competitor, describing the judge’s hypothesis as a “doomsday scenario” that he did not consider likely, and worrying that such restrictions could place a low ceiling on the amount of competition introduced into the search market.

Google attorney John Schmidtlein argued that the data syndication should be limited to just Google’s search index, rather than include user data, because that’s what competitors are truly interested in.

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