Google and Competition: Concerns Beyond the DOJ’s Lawsuit

"On October 20, 2020, the Department of Justice (DOJ) and 11 state attorneys general filed a lawsuit against Google LLC under Section 2 of the Sherman Act (15 U.S.C. § 2). The lawsuit alleges that Google unlawfully maintains “monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anti competitive and exclusionary practices.” CRS Legal Sidebar LSB10544, The Google Antitrust Lawsuit: Initial Observations, by Jay B. Sykes provides an in-depth discussion of the DOJ lawsuit.
 
The DOJ lawsuit suggests structural relief—potentially involving divestitures of specific operations—as part of the potential remedy for Google’s alleged anti competitive conduct.Because the lawsuit focuses on Google’s conduct in search services and search advertising, any structural remedies would likely focus on these services. For example, if the court finds that Google violated Section 2 of the Sherman Act, it could order the separation of Google’s search services and search advertising from its other products or only from specific products, such as the company’s mobile operating system Android and its browser Chrome.
 

 Over the last two years, some Members of Congress have raised broader concerns about Google’s conduct in markets other than search services in congressional hearings and in a report issued by the House Subcommittee on Antitrust, Commercial, and Administrative Law, Investigation of Competition in Digital Markets. This In Focus explores some of these additional competition concerns that may not be addressed by the DOJ lawsuit..."
Google 

Copyright in Code: Supreme Court Hears Landmark Software Case in Google v. Oracle

"In what observers have hailed as the “copyright case of the century,” an eight-member Supreme Court heard arguments on October 7, 2020, in Google LLC v. Oracle America Inc., a long-running intellectualproperty dispute between the two tech giants. Along with the billions of dollars at stake between the parties, the Court’s decision in Google v. Oracle could have far-reaching implications for software companies, the broader technology industry, and other copyright-intensive industries. Reflecting these stakes, the Supreme Court received over 70 amicus briefs from industry, advocacy groups, academics, and other stakeholders, ranging from computer scientists and small software startup firms to IBM, Microsoft, and the Motion Picture Association. This Sidebar reviews the legal doctrines at issue in Google, the facts of the dispute, the parties’ arguments, and the potential implications of the Court’s decision for Congress.

Software Copyright Basics

Copyright law grants certain exclusive legal rights to authors of original creative works, such as books, music, fine art, and architecture. At least since 1980, U.S. copyright law has protected computer programs as a type of literary work. Applying legal principles originally crafted for books to computer code has not always been a straightforward task, in part because computer programs are more functional than other copyrightable subject matter. Courts have long wrestled with the appropriate scope of copyright protection in computer code. When the Supreme Court last tried to weigh in on software copyright in the 1990s, it divided 4-4 and therefore issued no precedential decision. Given that the Court heard arguments in Google with eight Justices presiding, there is at least a possibility of a 4-4 split in this case as well, although the probability of such an outcome remains unclear..
Google v. Oracle 

Investigation of Competition in Digital Markets

"On June 3, 2019, the House Judiciary Committee announced a bipartisan investigation into competition in digital markets,2 led by the Subcommittee on Antitrust, Commercial and Administrative Law.3 The purpose of the investigation was to: (1) document competition problems in digital markets; (2) examine whether dominant firms are engaging in anti competitive conduct; and (3) assess whether existing antitrust laws, competition policies, and current enforcement levels are adequate to address these issues.4 The Committee initiated the investigation in response to broad-ranging investigative reporting, and activity by policymakers and enforcers, that raised serious concerns about the platforms’ incentives and ability to harm the competitive process.

As part of the investigation, the Subcommittee held seven oversight hearings that provided Members of the Subcommittee with an opportunity to examine the state of competition in digital markets and the adequacy of existing antitrust laws. A diverse group of witnesses offered testimony on topics related to the effects of market power on the free and diverse press, on innovation, and on privacy. Other witnesses who testified included executives from businesses with concerns about the dominance of the investigated firms. The hearings also provided an opportunity for key executives from Facebook, Google, Amazon, and Apple—including the Chief Executive Officers of these firms— to address evidence that was uncovered during the investigation in a public-facing venue. After each of the hearings, Members of the Subcommittee submitted questions for the record (QFRs) to the witnesses.

The Committee requested information from the dominant platforms, from market participants, from the Federal antitrust agencies, and from other relevant parties, for the purpose of obtaining information that was not otherwise publicly available but was important to assembling a comprehensive record. The Committee also sent requests for submissions to various experts in the field, including academics, representatives of public interest groups, and practicing antitrust lawyers. The responses to these requests were indispensable to staff’s ability to complete this Report and its recommendations for congressional oversight of the antitrust agencies and legislative action.

This Report is intended to provide policymakers, antitrust enforcers, market participants, and the public with a comprehensive understanding of the state of competition in the online marketplace. The Report also provides recommendations for areas of legislative activity to address the rise and abuse of market power in the digital economy, as well as areas that warrant additional congressional attention..."
Digital Markets 

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under
Copyright Law?
"The Google Book Search Library Project, announced in December 2004, raised important
questions about infringing reproduction and fair use under copyright law. Google planned to
digitize, index, and display “snippets” of print books in the collections of five major libraries
without the permission of the books’ copyright holders, if any. Authors and publishers owning
copyrights to these books sued Google in September and October 2005, seeking to enjoin and
recover damages for Google’s alleged infringement of their exclusive rights to reproduce and
publicly display their works. Google and proponents of its Library Project disputed these
allegations. They essentially contended that Google’s proposed uses were not infringing because
Google allowed rights holders to “opt out” of having their books digitized or indexed. They also
argued that, even if Google’s proposed uses were infringing, they constituted fair uses under
copyright law..."

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?
"The Google Book Search Library Project, announced in December 2004, raised important
questions about infringing reproduction and fair use under copyright law. Google planned to digitize, index, and display “snippets” of print books in the collections of five major libraries without the permission of the books’ copyright holders, if any. Authors and publishers owning copyrights to these books sued Google in September and October 2005, seeking to enjoin and recover damages for Google’s alleged infringement of their exclusive rights to reproduce and publicly display their works. Google and proponents of its Library Project disputed these allegations. They essentially contended that Google’s proposed uses were not infringing because
Google allowed rights holders to “opt out” of having their books digitized or indexed. They also argued that, even if Google’s proposed uses were infringing, they constituted fair uses under copyright law..."

Justice Department Submits Views on Proposed Google Book Search Settlement
"The Department of Justice today advised the U.S. District Court for the Southern District of New York that while it should not accept the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns of the United States regarding class action, copyright and antitrust law, the parties should be encouraged to continue their productive discussions to address those concerns. In its statement of interest filed with the court, the Department stated:

"Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost."

In its filing, the Department proposed that the parties consider a number of changes to the agreement that may help address the United States’ concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement’s ultimate scope, providing some mechanism by which Google’s competitors can gain comparable access.

The settlement agreement between Google and the authors and publishers aims to resolve copyright infringement claims brought against Google by the Authors Guild and five major publishers in 2005 raised by Google’s efforts to digitally scan books contained in several libraries and make them searchable on the Internet. The District Court’s hearing on the proposed settlement is scheduled to take place on October 7, 2009."

Google: 2008 US Election Trends
"Track the most searched elections-related terms below, and find out which candidates are hot in different cities. Find out how other Americans stay politically engaged online."