Judge suggests settlement as Google ad tech trial wraps

ALEXANDRIA, Va. (CN) — A trial to determine how Google will pay for operating its ad tech arm as a monopoly ended Monday with a newspaper executive pleading for more transparency in the way the Silicon Valley giant does business.

Describing the challenge of using Google’s ad tech system without a road map into the code that underlies decisions in ad placement, Matthew Wheatland, chief digital officer at DailyMail.com, remarked, “At the moment, it’s a black box.”

He was the final witness called by the U.S. Department of Justice, which pursued the case against Google. But during cross-examination, a Google attorney asked a series of questions aimed at raising doubts about Wheatland’s qualifications to make such assessments.

“Are you a software engineer?” asked Jeannie Rhee, attorney for Google.

“No,” answered Wheatland, whose degree is in economics.

“You don’t read code,” Rhee pointed out.

Google attorneys also called a final witness — Jason Nieh, professor of computer science and co-director of the Software Systems Laboratory at Columbia University, who first testified last week. Nieh disagreed with technical aspects of Wheatland’s testimony, but U.S. District Court Judge Leonie Brinkema, who presides over the case, cut the testimony short.

“We’re at the end of this case. I’ve got plenty of technology (evidence),” the judge said.

Final arguments are set for Nov. 17. While Brinkema has taken the matter under advisement, she remarked, “This is the kind of case that ought to settle.” She encouraged attorneys for the Justice Department and Google to pursue an agreement.

The next step is both simple and complex: Can a punishment be devised severe enough to deter Google from returning to business as usual without crippling a major American juggernaut and multinational internet service?

Justice Department attorneys want divestment of AdX, Google’s ad exchange, and DFP — DoubleClick for Publishers — an ad server. Google’s attorneys have argued for a more lenient course of action involving behavior and conduct remedies.

Google’s guilt was not in question during this phase of the legal proceeding. One year ago, Brinkema presided over the initial trial, during which publishers and ad executives complained about ad tech policies that left them on an uneven playing field.

In April, Brinkema convicted the tech giant of antitrust violations. Monopoly power is the ability to control prices or exclude competition, and her decision found that Google had violated law in the ad server and ad exchange market.

Brinkema wrote that Google willfully engaged in a series of anticompetitive acts to acquire and maintain monopoly power by entwining its publisher ad server and ad exchange through contractual policies and technological integration. This enabled the company to establish and protect its monopoly power. Beyond that, Google imposed anticompetitive policies on its customers and eliminated desirable product features.

The judge found the company’s justifications both invalid and insufficient.

Complaints about Google’s ad tech operation are playing out as news organizations face multiple challenges, including the increasing popularity of video ads and AI programs that scrape content from websites, making it less likely that readers will click through to a story.