A federal judge just told Google it broke the law and then let it keep the crime scene. That’s not a contradiction, that’s how antitrust works when the remedy is harder to write than the verdict.
U.S. District Judge Leonie Brinkema of the Eastern District of Virginia ruled this week that Google will not be forced to sell off pieces of its ad-tech business, even after she found last year that the company illegally monopolized the publisher ad server and ad exchange markets and unlawfully tied the two together. The Department of Justice wanted a breakup. Brinkema said no, and instead ordered behavioral changes, with the specific terms still sealed while both sides draft a final judgment over the next 30 days, according to the Washington Times.
Here’s the part that should bother anyone who watched this case unfold. Brinkema didn’t dispute that Google built and ran an illegal monopoly. She just decided that untangling Google’s ad exchange from its publisher ad server was too disruptive to the market to actually order it. Google gets to keep the machine that regulators say it built illegally, on the promise that it will now run that machine more fairly.
That’s the divestiture shield in action. Win the liability finding, lose the structural remedy, appeal the rest. Adweek reports Google has already said it plans to appeal the underlying monopoly finding itself, which means this fight has years left in it regardless of what behavioral rules Brinkema ultimately signs off on.
Ordinary common sense says if a company is found to have illegally rigged the pipes that decide which ads you see and what publishers get paid for showing them, the fix should look like something more than a promise to play nicer. Behavioral remedies are notoriously hard to enforce against a company with Google’s resources and Google’s lawyers. A divestiture is messy and disruptive, sure, but it’s also the one remedy that doesn’t depend on trusting the monopolist to police itself.
Publishers who’ve spent years watching their ad revenue funneled through Google’s toll booths aren’t getting the clean break they wanted. They’re getting a judge’s promise that the toll booth will be regulated differently starting sometime after the sealed order becomes public. We’ll see what that actually looks like once the final judgment lands.
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