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.
Schmidtlein counters that “there was no evidence that if Google was entering into non-exclusive agreements,” Apple and others would have actually wanted to cut deals with other search engines, or that those engines would have gathered much more data. “What is the alternate configuration of the device and what would that have done in terms of access to search queries?”
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.”