Happy New Year everyone! Hope you have a good new year break. We know at least Google did!
FTC more or less cleared Google of any antitrust violation. A small tweak here and there. Even the loops Google has to jump through to get injunctions for its FRAND Standard Essential Patents would probably only have the effect of delaying Google getting one by less than a year. With the recent carefully argued cases where judges rightly deny injunctions for FRAND cases just because it is available and instead requires the requester to justify it, that is not a big loss.
The reason for picking the BusinessWeek article over others in the previous paragraph is to highlight what Prof Eric Goldman of Santa Clara University was quoted to had said: “The FTC [...] had to find evidence of bad behavior and a reason why we could care [...] [but t]hey couldn’t.”. Before the announcement of the settlement, while I am reasonably sure Google “[did] no evil” to its competitors, there is still a strong possibility that Google’s backend process, such as business practices that disadvantages its competitors, might be an antitrust concern. After all, the one thing I learned from the Microsoft IE antitrust case is the root of any antitrust concerns is likely to come from the backend business practices, with the visible effect of that practices which we see being only a symptom, not the cause.
The “reason” Prof Eric Goldman is talking about refers to harm suffers by us, the public, not disadvantages suffers by the competition. Google’s competitors should take that to heart. They do not have to take my word for it. Take Stone’s (author of the BusinessWeek article) instead: “The editorial decisions made by search engines naturally create winners (content that ranks highly) and losers (content that does not). As long as arbiters like Google manage the experience in the best interests of its users, they appear to be on safe legal ground, at least in the U.S.” Still need more, here is another quote from FTC from the article: ‘While changes to Google’s search results “may have had the effect of harming individual competitors,” the FTC wrote in its statement, they “could be plausibly justified as innovations that improved Google’s product and the experience of its users.”’
One of Google’s competitor that should take note is Microsoft. It is complaining about Google not giving them access to YouTube Meta data. Fact is Google need not do it. Dave Heiner, Vice President & Deputy General Counsel, Microsoft, certainly proved the harm to Microsoft, but it is still a very long way from proving that it is harming us, the public. Taking his argument to conclusion Apple should open its iTune to other music services/devices because it is dominant in the music market.
Having said all this, I do not think FTC should just pack up its bag and go elsewhere. For companies as big as Google, Amazon, Microsoft and Apple, I think there should be a permanent FTC investigation open to monitor their behaviour. This time Google is cleared, but who is to say it will remain so in the next 10 years? I prefer prevention to cure.
Google can now concentrate on its EC antitrust investigation. That is always assumed to be, and shaping up to be more difficult than the FTC. Let’s wait and have a look at what EC finds when it is ready.