Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however, it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap will only be magnified as search engines become increasingly important and the internet continues to expand.
In order to mitigate the potential damage to competition, we must prevent Google from leveraging its power in core search to steal market share for its downstream vertical search services. Requiring Google core search to integrate its competitors' vertical offerings would promote competition without intrusive administrative interference. But action must come soon. Search is taking shape very quickly. Once the next generation of online search emerges, the dominant players will have already cemented their positions. Let us hope that when the dust settles it isn't too late.
TABLE OF CONTENTS INTRODUCTION I. GOOGLE'S ABILITY TO DIRECT INTERNET TRAFFIC II. APPLICABILITY OF ANTITRUST LAW A. Sources of Antitrust Law B. Application to Google III. A FAMILIAR SOLUTION IV. RESPONSE TO CRITICISMS A. "Just One Click Away" B. One Service C. Don't Stifle a Dynamic Industry CONCLUSION INTRODUCTION
Imagine a query for "Michigan Wolverines Football" that yields jerseys from Amazon, game statistics and the team injury report from ESPN, Coach Hoke's latest press conference from YouTube, and game tickets from Stub-Hub all on the same page. Such a search experience would be truly universal. (1) Indeed, Google is increasingly moving toward a universal model with its "core" search (2) but all of its integrated "vertical" services (3) are published by Google itself. Because Google has such great market power in core search, the integration raises competitive concerns that Google is leveraging its dominance in core search to gain market share in vertical search.
Since its inception, Google has been largely celebrated for its contributions toward the progress of the internet. Indeed, Google has been a great pioneer in the digital age by making the internet's vast stores of information accessible to average users. A loyal contingent of users has rewarded Google for its tremendous innovation, making it the most frequently visited website in the world. (4) Its name has become a generic verb, synonymous with "to search the internet." (5) It ranks among the twenty most valuable public companies in the world, (6) and it continues to grow at a torrid pace. (7) Yet the past year has brought Google unwanted attention as well. It has begun to face scrutiny for the anticompetitive nature of some of its business practices, both in the United States (8) and in the European Union. (9) In particular, Google has come under fire for giving preferential treatment to its own proprietary services over those of its downstream competitors. (10) This favoritism creates the potential for foreclosure. (11)
Antitrust law promotes free market competition by regulating anticompetitive conduct by companies in positions of power. (12) Its overarching purpose in doing so is to increase consumer welfare. (13) In the United States, anticompetitive conduct by a single firm is governed primarily under [section] 2 of the Sherman Act, which prohibits monopolization and attempts to monopolize. H Although the Federal Trade Commission ("FTC") recently dropped its investigation, (15) competition authorities around the world continue to investigate Google because of concerns that its practice of favoring its own products will foreclose existing and potential competitors, thus allowing Google to maintain and extend its market power. (16)
This Note argues that by favoring its own proprietary ("vertical") services in its general ("core") search results, Google violates the spirit, if not the letter, of U.S. competition laws. Part I explores Google's role within the greater internet ecosystem and weighs the potential consequences of Google hard-coding its own services at the top of the results page. Part II explains how Google's conduct does in fact violate [section] 2 of the Sherman Act and [section] 5 of the FTC Act, despite the FTC finding otherwise, and identifies instances in which analogous conduct has been found illegal in the past. Part III proposes a remedy to Google's search bias modeled after the Department of Justice's settlement with Microsoft, whereby Google is required to allow competing publishers to integrate their services into a Google core search when a user so desires. (17) Finally, Part IV examines the criticisms that policing Google is unnecessary and concludes that they are unconvincing.
GOOGLE'S ABILITY TO DIRECT INTERNET TRAFFIC
The advent of Google substantially improved the searchability and usability of the internet and thereby decentralized the flow of information. This Part argues, however, that Google has since become a bottleneck for the flow of information on the internet, and that it has exploited this power to disproportionately direct internet users to Google's own content.
In the 1990s, the internet was extremely disorganized and its potential unrealized. There was a limited quantity and variety of content available, and accessing that content was often an arduous task. The search engines of the day, such as Lycos and Webcrawler, brought users results based on the number of times their keywords appeared, which severely limited their effectiveness. (18) For instance, a search for "Microsoft" might have shown the websites of vendors who sold Microsoft products before Microsoft's own website. Thus, the relatively tiny internet remained highly fragmented and information was often difficult to find. Internet users often needed to know what was available before even commencing their searches, and web pages drew traffic by proliferating their brands through conventional media.
Larry Page and Sergey Brin, Google's cofounders, changed all this. They developed an algorithm that ranks web results based on "relevance," which represents some combination of the web page's presence in links from other sites and its popularity with users searching similar queries. (19) Introduced in beta form in 1998, Google quickly drew praise for returning better results, despite indexing just a fraction as many web pages as its competitors. (20) Its subsequent success has been well documented. By 2000, Google had indexed over a billion web pages, (21) and by the time of its initial public offering ("IPO") in 2004, it was responsible for processing 84.7 percent of all search queries on the internet. (22) Google helped pioneer a world where internet users don't need to know exactly what they are searching for before they search, and the company now enjoys the third-highest market capitalization among U.S. tech companies because of it. (23) Yet at the same time, Google's corporate pledge--called "Don't Be Evil"--promises emphasizing ethics over profits. The preface of the pledge specifically states that Google's services should give users "unbiased access to information." (24)
Despite the internet's promise as a vehicle for decentralized speech, (25) "bottlenecks" have emerged through which internet traffic must pass. Internet service providers ("ISPs") like Comcast, which own and operate the physical bandwidth through which data transmission occurs, (26) were the first such bottlenecks. There existed a real danger that ISPs would be able to slow down or block data transmission for entities that competed with them until the Federal Communications Commission implemented "net neutrality" regulations proscribing ISPs from providing preferential transmission to those who pay for it. (27) Google, in fact, spearheaded the net neutrality movement, thus ensuring that ISPs couldn't decide the internet's winners and losers. (28) The following comes from Google's own Public Policy Blog:
[I]nnovation has thrived online because the Internet's architecture enables any and all users to generate new ideas and technologies, which are allowed to succeed based on their own merits and benefits. Some major broadband service providers have threatened to act as gatekeepers, playing favorites with particular applications or content providers, demonstrating that this threat is all too real. It's no stretch to say that such discriminatory practices could have prevented Google from getting off the ground--and they could prevent the next Google from ever coming to be. (29) More recently, search engines have emerged as a new form of bottleneck. (30) The owners of these bottlenecks can be likened to gatekeepers who "directly manipulate the flow of information--suppressing some sources while highlighting others--whether on the basis of intrinsic preferences or in response to inducements or pressures by others." (31) The unstructured nature of the internet makes this so. Google estimates that there are over one trillion unique URLs in existence with that number growing by several billion every day. (32) Indeed, there is so much content that without an easy way to navigate through it, the vast majority of content would never be found. This would neutralize much of the internet's potential; but search engines fill the internet's structural void. A quick Google search for "Nike" yields links to sites selling Nike products, a map of local dealers, a compilation of news articles, and a stock quote for the company. (33) Such a service is invaluable to internet users and publishers alike. Yet that same necessity gives Google its power.
In the United States, Google is used for nearly...