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FTC, Google Settle; Google's Lawyer Settles For Dependent Freedom

The FTC has ended its investigation of Google with a settlement that interferes—but not as much as some Google competitors had wanted—with Google’s freedom to produce valuable services.

Over the twenty months of the investigation, Google critics, notably including Microsoft (a former victim of the antitrust laws and a competitor of Google’s in several respects) sought to limit Google’s ability to offer search users the results it thought best. Google responds to search queries by offering, in addition to plain web search results, specialized results it thinks will meet the user’s needs—for example, if you search for an address, it will give you a map, and if you search for a product, it may offer shopping results. The FTC has conceded that that’s legal.

Google is not out of the woods on this issue, however, because the FTC doesn’t have a monopoly on bringing antitrust cases. The federal Department of Justice can do so too, and Google’s competitors have already begun lobbying DOJ. State authorities can also bring antitrust cases, and sometimes private parties can too. And that’s saying nothing about Europe, whose antitrust authorities are also after Google.

The settlement does restrict Google on three other points:

  • Google will be bound not to seek court orders against competitors’ use of certain “standard-essential patents” it owns.
  • Google has accepted certain limits on the terms it can require programmers to accept in order to have their software access to Google’s advertising database.
  • Google has promised to allow website publishers to opt out of having their content included in Google’s specialized pages without opting out of having their content listed in Google’s main web search.

It’s not clear whether the FTC has decided that this settlement limits Google enough because of political pressure, because it reflects the FTC’s reading of the law, or for other reasons. But however that may be, this is a moment of relief for Google and everyone who values Google’s services.

Google’s top lawyer said the company accepted that “with success comes regulatory scrutiny” and was pleased that regulators “have concluded that we should be free to combine direct answers with web results.”

From the perspective of the rights of producers, however, one thing is important to note: The FTC’s reason for reaching that conclusion is based on the value of consumers’ well-being, the value at the heart of modern antitrust law. This approach makes Google’s freedom dependent on its service to others, instead of honoring the right of the people at Google to live for their own sakes. Yet all of us, in technology, other industries, and all walks of life, have a fundamental need to live for ourselves—and to acknowledge that we do.

Still, the dependence of businesses' freedom on service to consumers is built into modern antitrust law, and it might not be sound strategy for Google’s lawyer to denounce it. Nevertheless, I hope none of this stops Google’s innovators from pursuing their work for the values—including the sheer joy of creation—it can bring to their own lives. And I'm glad their innovations will continue to bring values to mine.

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