Antitrust Complaints Against Google Still Don't Make Any Sense
from the think-this-through dept
There’s been plenty of buzz about the EU Commission basically admitting that it’s going to go after Google on antitrust grounds if Google doesn’t change certain practices. However, as we’ve seen with past claims of antitrust issues with Google, when you begin to unpack the complaints, they don’t seem to hold up to much scrutiny. There is no argument that Google is a big player, and could be abusive — but there is little, if any, evidence of actual abuse. And, most of all, there seems to be no evidence that Google’s actions harm consumers.
With perfect timing, the Antitrust & Competition Policy Blog held a blog symposium concerning antitrust issues related to Google and there are a bunch of worthwhile reads in there. Much of the focus of the discussion (and some of the EU’s complaints) have to do with the nonsensical concept of “search neutrality” — a made up concept that was designed originally to mock Google for supporting “net neutrality.” But just because you add “neutrality” to the end of each phrase doesn’t mean that the two have anything in common. Most people supporting the concept of “search neutrality” talk about how it’s somehow “unfair” if Google pushes down a website. In fact, that’s been the crux of most of the complaints from companies — that Google doesn’t rank them high enough, or somehow favors its own services above their own. But if their services suck and consumers find them annoying or spammy, shouldn’t we want Google to demote them? And so far no one has explained why Google should support other search engines.
In that online symposium, Frank Pasquale makes the case for why Google should be subject to having others review its algorithmic choices to keep such searches “neutral.” But, in one of the more compelling statements, law professor James Grimmelman points out that for all this talk of “search neutrality,” no one can explain how it makes any sense:
The problem is that one cannot define “manipulation” without some principled conception of the baseline from which it is a deviation. To punish Google for being non-neutral, one must first define “neutral,” and this is a surprisingly difficult task.
In the first place, search engines exist to make distinctions among websites, so equality of outcome is the wrong goal. Nor is it possible to say, except in extremely rare cases (such as, perhaps, “4263 feet in meters”) what the objectively correct best search results are. The entire basis of search is that different users have different goals, and the entire basis of competition in search is that different search engines have different ways of identifying relevant content. Courts and regulators who attempt to substitute their own judgments of quality for a search engine’s are likely to do worse by its users.
Neutrality, then, must be a process value: even-handed treatment of all websites, whether they be the search engine’s friends or foes. Call this idea “impartiality.” Tarleton Gillespie suggested the term to me in conversation.) The challenge for impartiality is that search engines are in the business of making distinctions among websites (Google alone makes hundreds of changes a year).
You can’t just say that you’re going to force Google to be “neutral,” because there is nothing neutral about what a search engine does. By definition it’s picking winners and losers. If it does a bad job of it, people switch to other search engines (and, for what it’s worth, a lot of people have been complaining about search quality lately — and I’ve certainly found myself using DuckDuckGo and Blekko more frequently as Google doesn’t find stuff it should be able to find).
But, as Grimmelman notes, even if you can argue that Google shouldn’t be allowed to favor its own offerings, that leads to a difficult question: is the purpose of anti-trust law to benefit consumers or to benefit competitors? Some may argue that with greater competition, consumers are automatically better off, but that’s slightly misleading. That’s true of greater competition in the overall world (and it’s why I can choose those competing search engines). But does it make sense to have that same sort of competition within Google by forcing it to change its algorithms? That’s a much, much harder case. Again, Grimmelman highlights the problems:
Here, however, it confronts one of the most difficult problems of high-technology antitrust: weighing pro-competitive justifications and anti-competitive harms in the design of complicated and rapidly changing products. Many self-serving innovations in search also have obvious user benefits.
One example is Google’s treatment of product-search sites like Foundem and Ciao. Google has admitted that it applies algorithmic penalties to price-comparison sites. This may sound like naked retaliation against competitors, but the sad truth is that most of these “competitors” are threats only to Google’s users, not to Google itself. There are some high-quality product-search sites, but also hundreds of me-too sites with interchangeable functionality and questionable graphic design. When users search for a product by its name, these me-too sites are trying to reintermediate a transaction that has very little need of them. Ranking penalties directed at this category share some of the pro-consumer justification of Google’s recent moves against webspam.
In other words, it seems pretty clear that some of the sites complaining loudest for antitrust action against Google were crappy sites that users didn’t want cluttering up their Google search results. Why should Google be punished just because those sites couldn’t compete and offer a good service? That seems backwards.
There is no doubt that we should be cautious around companies that get to be “too big,” to make sure they’re not doing things that hurt the public. But, so much of the focus on Google is about (a) just how big Google is and (b) how it harms some competitors within Google. Of course, plenty of Google competitors thrive within (and outside) Google as well. It really only seems to be the flailing ones who are complaining the loudest (with the possible exception of Yelp, whose complaints still don’t make any sense to me).
If there are legitimate antitrust concerns, they should be discussed, but so far, all of the concerns raised seem to be because some companies just don’t like how they rank in Google. And it’s not at all clear we need a massive antitrust lawsuit to deal with that issue. It’s not at all clear it’s an issue to begin with.