Normally on Sunday’s I do a round-up of monopoly-related news for paid subscribers. That’ll be at the end of this email. But today, I want to do a bit of a summary of the Google antitrust trial, since we’re investing so much into covering it. The key question is as follows. Google is a very powerful corporation worth around $2 trillion, it controls access to the internet, and it will roll out generative artificial intelligence for billions of people. And yet, the public hasn’t heard that much about a major trial where the firm and its executives are being asked how they secured that immense power. Why?
There are several possibilities, but in my view, the most obvious reason is that the judge in the case, Amit Mehta, is effectively holding the contest in secret. Last week, according to our calculations, over half of the trial, including testimony from key witnesses, happened in closed session, unavailable to the public. Why? Here’s Mehta in a pre-trial hearing in August, explaining his thinking to Google’s attorneys.
“Look, I’m a trial judge. I am not anyone that understands the industry and the markets in the way that you do. And so I take seriously when companies are telling me that if this gets disclosed, it’s going to cause competitive harm. And I think it behooves me to be somewhat conservative in thinking about that issue, because, you know, I can’t see around every corner.”
In other words, Mehta is deferring to Google on the need for secrecy.
The Trial Isn’t the Remedy
In 1998, the richest man in the world, Bill Gates, had to answer to the public in an antitrust trial. Gates had been a titan for almost two decades, gracing the cover of Time Magazine multiple times as a young genius. That all changed when he was deposed by government lawyers. “The Bill Gates on the courtroom screen,” reported the New York Times, “was evasive and uninformed, pedantic and taciturn, a world apart from his reputation as a brilliant business strategist, guiding every step in Microsoft Corp.'s rise to dominance in computing.”
For eight months, the Microsoft antitrust trial was front-page news, the drama of the trillion dollar personal computing revolution unveiled to the public. One result was that Microsoft, afraid of public exposure years later, refused to use its control over the browser to kill nascent rivals, in particular a young search company called Google.
Today, we should be in a similar moment, only this time with Google as the titan on trial. Google has engaged in behavior that’s almost identical to what Microsoft did in terms of coercion of rivals, and just as consequential in terms of shaping the future. And yet, the reporting and interest in this trial is minuscule compared to what we saw 25 years ago. Frankly, some days, our Big Tech on Trial reporting site is one of the few journalists in the court room, which is astonishing. This dynamic is especially odd because, unlike 1998, we are in an anti-monopoly moment, with political interest in corporate behavior far more elevated than it was in 1998.
What gives? There are a few reasons for this odd disconnect, but one reason is very simple - there was public access to the Microsoft trial in 1998. However today the judge, a guy named Amit Mehta, has effectively barred the public from seeing anything meaningful or interesting. In my profile of the trial, back in August, I focused on Mehta, because I knew the dynamics would be organized by his decision-making. And so it has been.
Let’s compare the two trials. For Microsoft, the judge ruled on behalf of media organizations that the deposition of Bill Gates would be unsealed, a deposition that was not meaningful for the trial, but also critically important to the historical record, and one you can watch online today. He also unsealed over a hundred transcripts of other depositions from industry players, including ones that weren’t used in the trial itself. This public record was critical to the reporting, and to public understanding of the industry.
But this Google trial? By far the most important moment was when Judge Mehta denied a third-party motion to broadcast a publicly accessible audio feed of the trial for fear that information Google wishes wouldn’t be disclosed become public. Indeed, Google lawyers have explicitly argued that the judge should avoid allowing documents to become public solely because it is “clickbait.” To put it differently, the search giant literally argues material should stay sealed merely because if that material is interesting. Imagine if Bill Gates, or say, a routine defendant in any case, could have availed himself of that innovative legal argument!
These arguments should be laughed out of court. And yet, Mehta takes them seriously, which has led to an almost-entirely private trial, deadeningly boring to the public because key documents have been deleted and the important or embarrassing moments are held in secret.
