More from US v. Google: all the news from the search antitrust showdown

Ban Google from bidding for default search engine placement, says Schmidtlein, and Microsoft will just roll up with its own wheelbarrow of cash for a similar exclusive deal with Bing. “This would be one of the most invasive remedies I can imagine, and it would also harm all of these adjacent markets,” he says. He adds that companies are “competing just fine with Gemini” as well.

That’s Google’s attorney’s description of how OpenAI launched ChatGPT as a “lark.” The underlying argument is that the judge doesn’t need to impose long-term restrictions, since the market moves so fast — and now, of course, OpenAI is raising billions in funding.

Mehta seems dubious that any conventional search engine will ever come to rival Google. If a competitor emerges, “it’s not going to be DuckDuckGo,” he says. It won’t even be Microsoft. It will be, he says, likely an AI service that includes search.

Mehta brings up an issue Apple’s Eddy Cue raised during his testimony. Cue said that if Google was banned from cutting exclusive deals, Apple would still be forced to use it as the default because it’s the only viable option, while Google would simply stop needing to pay it for that placement. Is that a valid problem?

Mehta poses a weighty question to the DOJ: how seriously should he take the dire warnings that companies Google pays for default placement, including Mozilla, have made during testimony? “Every single distribution partner ... has said, this would harm us. This would harm us. Some have gone so far as to suggest this would put them out of business,” Mehta says. “Is that an acceptable outcome to fix one market at the risk of harming others? Because that’s what these other folks are telling us.” Mozilla, for instance, has said its Google deal provides the vast majority of its revenue.

Dahlquist makes the case for banning Google from offering payments for default placement on platforms, singling out its “astronomical” revenue-sharing deal with Apple. “If we continue to let Google pay for distribution, it will continue to win every contract,” he said. “Nobody can pay as much as Google.” He extends this to how Google is handling Gemini default placement.

Lunch now concluded, the DOJ’s Dahlquist is discussing the “monopoly flywheel” that keeps Google dominant, particularly the deals that have given Google default placement on places like Safari. Google has, as Mehta pointed out, offered some concessions here. “Their remedy as I understand it is, drop the word ‘exclusivity” in these deals,” Dahlquist says, and the DOJ agrees with that. But he says Google “doesn’t go nearly far enough” in including Gemini in its proposals.

We’ll be back in 45 minutes for more.

Or more specifically, the lack of a detailed plan from the government about how to preserve it. “How much detail do I need to put on paper?” Mehta asks DOJ attorney Adam Severt. Right now, he says, he’s got “zero.” The DOJ is aiming for a committee that could decide, which Google strenuously objects to. Mehta runs through a series of steps the committee might have to take and asks how long it would require. A “couple of weeks to month to set up the experiment,” and then “a day or two to run the experiment,” Severt says.

Schmidtlein is tearing into the government for not hammering out how to handle sensitive data before and during this hearing, and instead trying to kick it down the road for a decision later. “There’s an extraordinary amount of user data here,” and everyone “admits that it implicates privacy,” he says. Google previously argued that revealing search query data would undermine user trust, and he reiterates that search queries can reveal detail about individual people even if you try to remove personal identifying information. “We have a rough idea of a standard of privacy, but no idea about how to solve it,” he says. “It’s not even begun to be resolved.”

Schmidtlein is coming back, starting where the government left off, with search data syndication and who might get access to it — which he emphatically says shouldn’t include AI companies. “It could not be more clear, they are not trying to out-Google Google. They’re going about it in a different way. They are not a search engine,” he says. “The only person who would qualify right now under their definition is Microsoft” with Bing.

Judge Mehta is zeroing in on the possibility Google could only share those long-tail queries. The plaintiffs say the approach might make sense, but that it’s not always obvious how to define a long-tail query. Mehta objects to that, saying it seems like something competitors should figure out. “They don’t have access to the same data ... that’s the problem,” he says — not that they can’t figure out what they are.

Mehta has been pushing on ways Google could share its search data without including significant amounts of user data or kneecapping Google and still give rival search engines enough to improve their products. He’s pressing the government on whether witnesses really focused on comprehensive user data, or if they were more interested in Google’s index. He cites an amicus brief from Brave, which suggested limiting the shared data to unusual and hard-to-get “long-tail” results that can supercharge search quality. Also, how often should Google have to provide fresh results, and how much should it cost competitors to access them? “We’re trying to kickstart competitors, we’re not trying on Day 1 to put them on equal footing with Google,” he says.

“I understand this is now forward-looking, but I don’t know that” there’s an argument that would “allow the court morphing the market” this way, he says. “What case can you look to that has that kind of quality to it that can address that kind of emerging market and put it in this box of qualified competitor?” Judges’ questions don’t always indicate how they’ll rule, but that might bode ill for some of the companies Google is most worried about — generative AI providers — getting access to valuable data.

Mehta asks the question to the government. “I don’t think they’re interested in competing as a search engine qua search engine,” he says, elaborating. They “want to have better grounding in search” to have the best model in the world; is that sufficiently related? “It feels like to me the definition ought to be changed” of a general search engine if so, he says. The government disagrees, saying AI companies are clearly aiming to compete in the same areas. Mehta points out a contradiction: the government wanted to exclude a bunch of other search-engine-like services to establish Google had no meaningful search competitors during the liability trial, and now it wants to add new ones during remedies. “I’m not sure it quite fits,” Mehta says.

We’re still arguing about why data sharing is important, and whether Google’s “quality gap” of information compared with competitors is both significant and unfairly obtained. Data sharing and AI are emerging as two of the biggest elements of these arguments, which isn’t surprising: the former is something Google sees as potentially catastrophic, and the latter is where it sees the future of search.

We’re taking a 15-minute break before getting back to arguments — after a little chitchat, it’s near-silence on the teleconference line.

The DOJ’s lawyer is back up for rebuttal — arguing that Google might say its remedies are extreme, but a truly extreme remedy would be something like requiring it to sell search. The goal is denying Google the fruits of the monopoly it’s established and making sure there are “no practices” left to help it unfairly maintain it, he says.

“I don’t believe you have a factual basis to ... suggest there was a causal connection” between Google’s multibillion-dollar deal and Apple not developing a competing search engine, says Schmidtlein — and Google is still going to get the most traffic on Apple’s Safari browser even if it’s competing for placement on a non-exclusive basis. Yahoo catches a stray here: “Yahoo can’t even keep its own users” using its search engine, he says.

Mehta asks: what kind of legal framework should he be using to think about generative AI product remedies? “GenAI products are not in the relevant market ... there is no evidence that generative AI products were harmed” by any of Google’s conduct in this case, Schmidtlein says — they didn’t even exist during the period covered in the original trial. “The notion that these AI rivals have been harmed at all is... whatever,” he says. But Google is willing to address the question about forward-looking impact by avoiding bundling or exclusive deals like the ones it used for search. “You can rest assured that at least in that sense it can be addressed.”

Google’s attorney starts by emphasizing all the privacy and competitive problems he sees with the DOJ’s overall proposal, but concedes that some limited data syndication could be feasible. “None of this reverse-engineering” products or “feeding all of our data into an LLM”, Schmidtlein says, but the syndication could help improve search results marginally. (You may recall that Sundar Pichai claims unlimited data sharing could essentially kill Google search.)

Mehta and Schmidtlein are still arguing about what kind of hypothetical world would have existed without Google’s exclusionary deals, and how drastic a market intervention that would justify. Google, you may remember, is pushing hard to focus purely on ending the exclusivity requirements of its deals while scrapping other proposals like data-sharing with other search engines — but Mehta expresses concerns that this approach “sells the remedies portion of this short.”

Schmidtlein and Mehta are going back and forth over how much Google’s monopolistic conduct — particularly its exclusionary deals with companies like Apple — let it gather data that gave it an unfair leg up over other competitors, and whether without that conduct, other search engines would have become meaningful competitors. “We had witness after witness come in and say data helps improve search quality,” Mehta notes.

Google attorney John Schmidtlein is rebutting the government’s case — calling the proposed remedies “invasive and broad and market reengineering.”

Judge Amit Mehta just wrapped up a long line of questioning about how generative AI should play into the search trial. “We spent a lot of time in this remedies phase talking about AI,” Mehta began. “There’s an argument to be made perhaps that all that is not relevant because it’s not a market that was discussed during the liability phase.” Mehta asked Dahlquist to defend why a tool like Gemini should be considered part of the overall search market, not something separate and new. Dahlquist, in turn, emphasized that AI “is a new search access point. That is a gateway to search.”