ICLE Statement on DC District Court Order in Google Search Antitrust Case

By Elizabeth Lincicome & Geoffrey A. Manne. 

"PORTLAND, Ore. (Aug. 5, 2024) – The International Center for Law & Economics (ICLE) offers the following statement on today’s order from the U.S. District Court for the District of Columbia in United States v. Google and State of Colorado et al. v. Google finding that Google’s distribution agreements with browser developers and Android device manufacturers and carriers are anticompetitive in the market for general search text advertising and violate Section 2 of the Sherman Act.

The following quote can be attributed to ICLE President Geoffrey A. Manne:

The court’s order, which relies heavily on contested theories from the field of behavioral economics about the supposed power of defaults, fails to demonstrate how the contractual agreements at-issue harm consumers or competition. Moreover, the court overlooks the broader competitive landscape in search and the vigorous competition in which Google has been engaged to become the default search engine.

The fact that Google search has an 80% market share even on Windows devices, where Edge is the default browser and Bing is the default search engine, demonstrates that consumers go out of their way to use Google because they believe it is the best option. A default placement is worth very little if your product isn’t any good. By the same token, Google hasn’t been ousted as the default anywhere, because it has a superior product. The opinion offers no evidence to suggest that Bing would have become a viable competitor under any other set of facts. And that is fatal to the claims in this case, for which the plaintiffs, not Google, bear the burden of proof.

The court’s decision turns on a finding that Google won its place in the market through anticompetitive exclusive agreements and not “competition on the merits.” But the court struggles to maintain this conclusion, and ultimately its decision falters on that basis. Did Google win its place as a default search provider for Apple, for example, because it is the best search engine or by paying Apple for unwarranted exclusivity? The court’s conclusion that it was the latter is difficult to sustain—as even the court itself recognizes.

For more on the topic, see ICLE’s 2020 explainer; “The FTC Did Not ‘Fumble the Future’ in Its Google Search Investigation” by Geoff Manne and Dirk Auer; and “The Missing Element in the Google Case” by Greg Werden."