{"id":144715,"date":"2025-09-09T18:47:07","date_gmt":"2025-09-09T18:47:07","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/144715\/"},"modified":"2025-09-09T18:47:07","modified_gmt":"2025-09-09T18:47:07","slug":"google-decision-demonstrates-need-to-overhaul-competition-policy-for-ai-era","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/144715\/","title":{"rendered":"Google decision demonstrates need to overhaul competition policy for AI era"},"content":{"rendered":"

\u201cGoogle Ruling Shows Antitrust Is Dead,\u201d a Barron\u2019s headline<\/a> trumpeted. Perhaps a bit hyperbolic, it nonetheless reflects the inadequacy\u2014especially in the dynamic artificial intelligence age\u2014of relying on antitrust policies designed for the relatively static industrial age.\u202f\u202f\u00a0<\/p>\n

The court\u2019s recent decision in United States of America et al v. Google LLC<\/a> highlights the need for Congress to step up to its responsibility to define the relationship between AI and a competitive marketplace\u2014quickly.\u202f\u00a0<\/p>\n

The background of the Google case\u202f\u00a0<\/p>\n

The U.S. Department of Justice, joined by a bipartisan group of 11 state attorneys general, filed suit<\/a> in 2020 alleging that Google search was a violation of the Sherman Antitrust Act. After a 10-week trial, U.S. District Court Judge Amit Mehta ruled<\/a> in 2024 that \u201cGoogle is a monopolist, and it has acted as one to maintain its monopoly.\u201d The case then proceeded to its second stage, where the court considered how best to remedy<\/a> this situation.\u202f\u202f\u202f\u00a0<\/p>\n

The Department of Justice argued<\/a> in favor of structural solutions, a traditional antitrust remedy. To stop the perpetuation of monopoly, the government proposed restructuring Google\u2019s activities. This included undoing the defaults that make Google the search engine of choice for most browsers, including the purchase of exclusivity on devices, such as the 2022 payment<\/a> of approximately $20 billion to Apple to make Google the default on iPhone. The Justice Department also raised the possibility of making the market more competitive by divesting Google-owned feeders to search, such as the Chrome browser or the Android mobile operating system.\u202f\u202f\u00a0<\/p>\n

Instead, the court imposed<\/a> what Barron\u2019s described<\/a> as \u201calmost a best-case scenario for parent Alphabet.\u201d Rather than the requested structural solutions, the decision called for a series of behavioral requirements<\/a> for Google. These included banning exclusive search deals for default placement (although allowing payments for non-exclusivity to remain) and requiring Google to share with rivals on \u201ccommercially reasonable terms\u201d some, but not all, of the search results data that powers Google. To assist the Department of Justice in overseeing compliance, the court ordered<\/a> Google to establish an independent technical committee.\u202f\u202f\u202f\u00a0<\/p>\n

The CEO of rival search engine DuckDuckGo, Gabriel Weinberg, called the court\u2019s decision a \u201cnothingburger<\/a>.\u201d\u202f\u202f\u00a0<\/p>\n

AI changed the game\u202f\u00a0<\/p>\n

The emergence of generative AI \u201cchanged the course of this case,\u201d the judge wrote<\/a>.\u202f\u00a0<\/p>\n

Between the time the lawsuit was originally filed and the judge\u2019s decision, large language models (LLMs) moved out of the laboratory and became broadly accessible. It was a development that had a significant impact on the judge\u2019s remedies ruling.\u202f\u202f\u00a0<\/p>\n

Thanks to AI, the court found online search had become competitive seemingly overnight. AI companies are now in a better position \u201cto compete with Google than any traditional search company developer has been in decades,\u201d he ruled<\/a>.\u202f\u202f\u00a0<\/p>\n

What is the search market?\u00a0<\/p>\n

The arrival of AI has fractured online search into at least three identifiable markets. First is the traditional search market, where the user enters a query and receives a list of websites. As of August 2025, Google search had an 89.89%<\/a> market share of the worldwide search engine market. Microsoft\u2019s Bing was second with 3.92%<\/a>. Both levels have been stable over the preceding 12 months.\u202f\u00a0<\/p>\n

The second category is AI search, where the query returns a summarized answer drawing from the top links. Such services include Google AI Overviews, ChatGPT, Perplexity AI, and Bing Copilot. A December 2024 study<\/a> found Gemini and ChatGPT capturing\u00a078% of all AI search traffic. OpenAI\u2019s filing<\/a> with the court suggested its AI search activities slightly exceeded those of Google\u2019s\u00a0overviews.\u00a0<\/p>\n

The third category is what apparently caught most of Judge Mehta\u2019s attention: GenAI search. Such conversational agent-like dialog tools include ChatGPT, Claude, and Google\u2019s Astra. A June 2025 study<\/a> found that GenAI traffic was growing 165 times faster than organic search, yet it still accounted for less than 1% of total website traffic.\u202f Another study<\/a> found Google search grew by over 20% in 2024, handling over 5 trillion searches\u2014approximately 14 billion per day\u2014a total that is 373 times bigger than ChatGPT search.\u00a0\u00a0<\/p>\n

Gazing into a crystal ball\u202f\u00a0<\/p>\n

\u201c[U]nlike the typical case where the court\u2019s job is to resolve a dispute based on historic facts, here the court is asked to gaze into a crystal ball and look to the future,\u201d Judge Mehta wrote<\/a>.\u00a0<\/p>\n

Whether access to a limited amount of Google\u2019s search data will make traditional search competitive is indeed a crystal ball issue. It is not difficult, for instance, to imagine Google prevaricating and procrastinating over just what data is covered; after all, each day of delay delivers not only the benefits of 14 billion more searches, but also the ability to use Google\u2019s dominance to disadvantage competition in AI search and GenAI.\u00a0\u00a0\u00a0<\/p>\n

Judge Mehta\u2019s ruling walked a tightrope between Google\u2019s behavior in the past and the potential impact of a new technology on its future behavior. It is the essence of the competition policy challenge in an era of rapid-paced, AI-driven change. As well-intended as Judge Mehta\u2019s decision may be, it is the reason why there is a need to move beyond trying to use antitrust litigation for behavioral outcomes.\u202f\u00a0<\/p>\n

The competitive dynamic of AI is beyond the vision of anyone\u2019s crystal ball. The vagaries of such crystal ball forecasting emphasize the need for clearly delineated AI competition policy that is broader and more instructive than antitrust policy\u2014and the reason why there is a need for risk-based and agile behavioral standards to promote and protect a competitive AI marketplace.\u202f\u00a0<\/p>\n

Antitrust enforcement is important but inadequate\u202f\u00a0<\/p>\n

Antitrust is an important tool in protecting a competitive marketplace. In the AI era, however, it cannot be relied upon as the only tool.\u202f\u202f\u00a0<\/p>\n

As Judge Mehta wisely and humbly observed<\/a>, keeping pace with technological change and its impact on the market is \u201cnot exactly a judge\u2019s forte.\u201d The complexities of antitrust cases, in fact, are exceedingly rare in a federal judge\u2019s career. A 2012 study<\/a> estimated that, \u201c[i]n each of the past five years, antitrust cases accounted for less than half of one percent\u201d of all civil filings. Combining this relative lack of experience for even the most talented jurist with the economic and technological complexity of the issues in such cases ensures that decisions are inherently uncertain.\u202f\u202f\u202f\u00a0<\/p>\n

Antitrust cases are also reliably lengthy, as the Google case itself exemplifies. The case was filed<\/a> in October 2020, challenging two decades of alleged bad behavior by Google. The court issued its monopoly decision almost four years later<\/a> in August 2024. The remedies decision<\/a> required another year. Four years from filing to an initial decision, followed by an additional year for the remedies ruling, is not a criticism of Judge Mehta, but a recognition of the complexity of such litigation.\u202f\u202f\u00a0<\/p>\n

And this isn\u2019t the end of the process; subsequent appeals all the way up to the Supreme Court of the United States, where antitrust law is ultimately made, probably mean there will be no final decision until possibly 2027 or 2028. Such delay is an eternity in the exponential pace of digital technology, as new technologies change the landscape of the marketplace, including the potential of making the initial complaint moot.\u202f\u00a0<\/p>\n

Antitrust law, by design, is an after-the-fact review of past actions. The Sherman Act<\/a>, which Google was found guilty of violating, was designed to be backward-looking. Section 2 of the act makes it illegal to \u201cmonopolize, or attempt to monopolize, or combine or conspire\u2026to monopolize any part of\u2026trade or commerce.\u201d\u202f When the court found Google \u201chas violated Section 2 of the Sherman Act,\u201d it was a decision about Google\u2019s past practices. Then the court rejected the government\u2019s recommended remedies on the grounds<\/a> that they \u201coverreached\u202f\u202fin seeking forced divestiture of these key assets, which Google did not use to effect any illegal restraints.\u201d\u202f\u202f\u00a0<\/p>\n

The problem with relying solely on antitrust enforcement to address the competitive challenges of the AI era is directional. While antitrust is designed to eliminate illegal past practices, as Judge Mehta\u2019s opinion demonstrates, it is not a vehicle for the promotion of competition going forward.\u202f\u202f\u00a0<\/p>\n

The need for forward-looking AI competition policy\u202f\u202f\u00a0<\/p>\n

The week before arguments began in the remedies portion of the case, Google began to reposition the scope of the discussion from looking at past activity to looking toward the future. In an April 20 blog<\/a>, Google described the lawsuit as \u201ca backwards-looking case at a time of intense competition and unprecedented innovation\u201d that would \u201churt America\u2019s consumers, economy, and technological leadership.\u201d\u202f\u202f\u00a0<\/p>\n

There is, however, no established forward-looking competition policy for the AI marketplace. Continued reliance on antitrust statutes means continued reliance on the mitigation of already existing harms rather than the establishment of policies that would encourage innovation through the protection and promotion of competition going forward.\u202f\u00a0<\/p>\n

Competition policy is about more than anti-monopoly. A goal of public policy should be the ex ante promotion of competitive behavior, not just the ex post redress of its absence. This means augmenting antitrust\u2019s backward-looking, company-specific, and behavior-specific litigation with forward-looking regulatory oversight broadly applicable to the dominant providers of services.\u202f\u202f\u00a0<\/p>\n

The companies seeking to avoid such oversight frequently claim that regulation hurts innovation and investment. They are correct\u2014except that they are referencing old-style industrial micromanagement rather than a new form of oversight for a new era. The 21st-century regulatory model must be one of protecting the public interest while promoting the expansion of innovative advancements.\u202f\u202f\u00a0<\/p>\n

In place of top-down regulatory micromanagement of old utility-style regulation, the AI era requires agile risk management. This means replacing utility-style regulatory mandates with a new oversight model that focuses on competitive market outcomes using risk-based and agile oversight of expectations, not the regulatory dictation of management practices.\u202f\u202f\u202f\u00a0<\/p>\n

In this regard, Judge Mehta\u2019s decision was directionally on course for as far as he thought the law would let him go. His effort was to fundamentally alter competitive market dynamics by addressing the behavior of the dominant company regarding its control of an asset necessary for rivals to compete. But addressing a behavior from 2020 by embracing something that didn\u2019t exist at the time begs the question as to a going-forward solution for protecting that forecasted AI competition.\u202f\u202f\u00a0<\/p>\n

The court did very little to assure that GenAI would itself remain a competitive marketplace capable of providing its hoped-for solution.\u202f\u202f\u00a0<\/p>\n

What is needed for there to be a competitive AI marketplace is a similar\u2014but forward-looking\u2014behavior-oriented set of expectations for the essential assets of AI. The data that populates LLMs is, of course, one of those assets\u2014but the ruling does little to overcome the control of this essential asset by the dominant AI companies. So is access to another essential AI input: computing power. It is no accident that the Big AI companies, such as Google, Microsoft, and Amazon, are also the three largest cloud computing platforms.\u202f\u202f\u00a0<\/p>\n

Perhaps Judge Mehta\u2019s decision will fundamentally alter the competitive landscape for search. For it to be successful, however, requires there to be a competitive GenAI marketplace. For that market to exist requires a forward-looking policy establishing the expectation of open and fair access to the inputs necessary for AI innovation and diffusion. To ensure that the court\u2019s decision will not just kick the competition can down the road requires acting today to establish policy that protects AI competition going forward. \u202f\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"\u201cGoogle Ruling Shows Antitrust Is Dead,\u201d a Barron\u2019s headline trumpeted. Perhaps a bit hyperbolic, it nonetheless reflects the…\n","protected":false},"author":2,"featured_media":144716,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[59],"tags":[966,181,14091,14098,3200,14092,14099,97,252,253,4265,35984,14095,19594,14097,3657,14100],"class_list":["post-144715","post","type-post","status-publish","format-standard","has-post-thumbnail","category-health-care","tag-article","tag-artificial-intelligence","tag-business-workforce","tag-center-for-technology-innovation-cti","tag-commentary","tag-corporations","tag-governance-studies","tag-health","tag-health-care","tag-healthcare","tag-north-america","tag-regulatory-policy","tag-technology-information","tag-technology-policy-regulation","tag-techtank","tag-u-s-economy","tag-u-s-states-and-territories"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/144715","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=144715"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/144715\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/144716"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=144715"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=144715"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=144715"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}