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?
“The answer is today versus tomorrow,” Dahlquist says. “Hopefully in a future, world, he would say, I’ve got two or three great options out there,” and he can “play them off each other” to cut even better deals.
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.
“We don’t dispute the possibility of some private impact,” Dahlquist responds, though he disputes the magnitude. He argues that these warnings are still speculative, and that the issue at hand now is how to fix Google’s monopoly. Mehta seems dubious, saying a dramatic remedy could amount to him damaging the phone and browser market — both of which, incidentally, Google operates in. How, he asks, should he balance breaking Google’s hold on search with serving the larger public good?
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.
Mehta asks: does this argument depend on him declaring Gemini a search access point? “I don’t think so,” Dahlquist says. Even if it’s not right now, “it certainly could be tomorrow.”
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.
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.