Why Google's Antitrust Defense Is Wrong | Opinion

Google's legal team recently broke its two-month silence on the Department of Justice's antitrust lawsuit into its use of "anti-competitive and exclusionary practices" to get ahead of its competitors, especially in the mobile phone marketplace.

As expected, the search engine giant didn't admit any wrongdoing. Instead, it had its high-priced lawyers disingenuously "rebut" the suit point by point, painting the narrative of a popular, inventive company that always puts consumers' interests first.

Cue the eye-rolls.

A quick refresher for you: In October, the DOJ called out the unholy alliance between Google and other Big Tech giants, such as Apple, which changed the iPhone's default mobile browser to Google in exchange for billions of dollars.

The Department made the case that these types of deals have throttled competition and given Google a mobile monopoly that violates America's antitrust laws.

However, Google is now insisting that it's wrong to suggest its deals are anything other than "lawful, justified [and] pro-competitive." In its formal rebuttal, Google's legal team weaponized polling-friendly buzzwords and phrases, such as the company's so-called fixation on prioritizing innovation and its right to take part in "standard" contractual deals, muddying the waters around the investigation.

There is no monopoly, per its reasoning—at least not one that is predatory or law-breaking in nature—and it's time for the government to move on.

To the casual observer, Google's arguments may appear sensible. The public generally accepts the premise that Google has the most popular search engine through fair market means. So, to the more laissez-faire minded—which tend to reflexively support private market agreements—it may seem like a stretch that the deals Google made to get its search engine prioritized have anything to do with its success and popularity.

While I believe that these deals come in staunch violation of U.S. antitrust law, no one will ever know how much market share competing search engines would have absent these Google-made deals. Because of this, dovish decision-makers may never accept the premise of Google holding an illegal monopoly based on its contractual agreements with competitors alone. But that doesn't mean they can't be convinced of this point through other means.

We can still cut through Google's lawyers and make the case that the company created its monopoly through artificial means, and without concern for the free market mechanisms the company espouses to respect.

Google headquarters in California
Google headquarters in California Smith Collection/Gado/Getty Images

The most effective way to do so is by stepping back from the convoluted legal debate around the search engine's agreements and examine other actions Google took to embolden its mobile monopoly status.

The company's seemingly routine taking of others' ideas and intellectual property to construct Android is a perfect example. These IP issues don't receive the same degree of attention as the current lawsuits, which is a shame because they demonstrate just how clear-cut the case against Google really is.

The early days of mobile featured a competitive market with several options for consumers to pick. Google needed to get a product out quickly that would distinguish itself from its competitors. So the company decided to use code from the Java library to speed up Android's development process and make their system more friendly to developers, making it more likely that consumers would use its product.

The only thing standing between Google and its vision was a standard commercial licensing agreement with Sun, Java's creator. But Google didn't get one and instead copy-and-pasted the over 11,000 lines of code it needed. This decision led to a long court battle, Google v. Oracle, which reached the Supreme Court in October.

Even the most ardent of free market supporters don't support intellectual property theft, and the Android story doesn't end with Google v. Oracle, either. According to Steve Jobs, Google stole pinch and swipe features—the touch interface that makes user navigation incredibly friendly on mobile devices—from the iPhone.

This pattern of thievish behavior is unacceptable and is as much an antitrust issue as is collusive deal-making.

Section 5 of the Federal Trade Commission Act clearly demonstrates that IP theft is an antitrust issue. It states that the FTC should challenge "unfair or deceptive act[s] or practice[s]," "unfair methods of competition," or violations of other laws enforced through the FTC Act."

Section 2 of the Sherman Antitrust Act also prohibits the "maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen or historic accident."

Let's be honest: If appearing to take others' private property isn't prohibited by antitrust law based on these descriptions, then what is?

Google can continue to weakly claim that the collusive deals it made with competitors weren't illegal. However, even if the courts deem its reasoning to be true, there is no reason for the company to get off the hook. There remain plenty of unexplored avenues that demonstrate how Google created its mobile monopoly illegally, outside the free market sandbox. It's incumbent on decision-makers to add these arguments into the mix while they still can.

Will Chamberlain is senior counsel for the Internet Accountability Project, where he serves in a volunteer capacity.

The views expressed in this article are the writer's own.

Disclosure: Oracle is a funder of the Internet Accountability Project.