In both cases, the court chose not to require a breakup of the company’s business even as the U.S. government argued for one. In Microsoft’s case, the court said it could not establish a solid causal link between the company’s behavior and the operation of the monopoly.
“The DC Court of Appeals in the Microsoft case set out a stepwise burden-shifting approach to determine what is an anti-competitive act, and Judge Mehta followed it,” said Jeff Cross, counsel with Smith, Gambrell & Russell.
In the Google Search case, while Judge Mehta indicated that there was a causal connection between Google’s default search arrangements and its monopoly maintenance, he argued the connection was not strong enough to require a breakup of Google.
One antitrust expert noted that this approach to issuing remedies is uncommon.
“The DC Circuit has this idiosyncratic opinion where they said, basically, ‘You’ve got to have a really strong causation finding before you can do a structural remedy,’ which, as far as I can tell, has not ever been said in any other case” besides Microsoft, said John Newman, a leading antitrust expert and a chair at the University of Memphis School of Law.
“[Mehta] just was not even willing to entertain a spin off of Chrome, let alone Android,” Newman said.
Opening up data to rivals
The remedies ordered against Google are very similar to those taken against Microsoft at the beginning of the century, with some notable differences.
Google secured exclusive rights for some of its products to be the default option on devices, but it did not forbid device manufacturers from allowing users to install other browsers or search products. Microsoft, on the other hand, did not allow rival browsers or middleware to work on its operating system whatsoever. Because Microsoft was more exclusionary in this right, the court barred it from entering into any kind of exclusive contracts with PC makers, internet providers, or software developers that would hamper the use of rival browsers or middleware.
The court’s data sharing requirement is another Microsoft lookalike remedy. Microsoft in 2001 agreed to open up access to its APIs to allow developers to build products that worked on its Windows operating system, thereby promoting interoperability and giving competitors the opportunity to compete. In a similar way, Google has also been ordered to syndicate search results and search text ads to competitors for a five-year period. Google pushed back on that order in a blog post Tuesday, arguing that such a requirement may violate user privacy.
Both the data-sharing and syndication requirements are “in the same bucket of cracking open Google and forcing it to divulge some stuff,” Newman said, “which is kind of part and parcel with the type of remedy in Microsoft where the judge did crack open Microsoft and say you’ve got to grant access to APIs.”