May 21, 2024
On May 10, The Capitol Forum hosted a conference call with Jason Kint, CEO of Digital Content Next, to discuss the implications and potential outcomes of the recently concluded Google trial proceedings. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Good afternoon, and welcome to our conference call today with Jason Kint on the Google search antitrust trial. I’m Teddy Downey, Executive Editor, here at The Capitol Forum. And our guest today, I’m so happy he’s doing this, is the CEO of Digital Content, Jason Kint. We are a proud member, The Capitol Forum, of Digital Content Next. So, I just wanted to get that out there right away. He is a 20-year veteran of the digital media industry. He spent seven years leading the evolution of CBS sports into a multi-platform brand offering premier broadcast online and mobile sports content. As SVP and General Manager of CBS Interactive Sports Division. I mean, I could go on, but he is the leading thinker, I think, leading intellectual when it comes to going through all of the court cases around Big Tech. He is, to my mind, just peerless when it comes to sort of his knowledge around these cases and has attended a lot of the trials as well. So, thank you so much for doing this, Jason.
JASON KINT: Thank you, Teddy. I’m thrilled to be here. And my own disclaimer would just be that I am not an antitrust attorney. I just play one. And so, I’m deep on the information. And yeah, I spent 20 years running major digital media businesses. So hopefully, I can add a little bit of context for why this stuff matters.
TEDDY DOWNEY: And before we get started, if you have questions, please email us at editorial@thecapitolforum.com. Or you can use the GoTo Webinar control panel thing here and enter a question in that.
So, Jason, I think on everyone’s mind is we just had the closing arguments last week in Google search. What was your reaction to how that ended? And I just want to get your initial sort of reaction to what happened and then would love to follow up with a conversation about the judge and some of the evidence.
JASON KINT: Sure. I mean, having not seen an antitrust lawsuit of this caliber play out, it’s interesting how you end, right? You just kind of—everybody thanks each other after spending four years in trial and discovery, et cetera and having waited from the fall for just a couple of days of action. But I thought the summation of the case by the Justice Department was crystal clear based on everything I recall from the fall. And I think they did a really good job of kind of laying it back out simply and clearly. And I was glad they dug in more on the advertising part of the business too. Because I thought that also was a good tease to the AdTech trial that’s coming in September. And the sanctions are the thing that’s kind of laying out there that came up at the very end too. Because that plays into so many of the other trials that are happening.
TEDDY DOWNEY: Yeah, and I think the sanctions conversation is a good way to get sort of a lens of how the judge is thinking about this case and how he’s evolved, I think. My overall take—I’m not going to get too into it because I want to hear what you have to say. But he’s very thoughtful and he really wants to dig into material. And so, I would love to get—I thought he was like at the beginning going to be kind of deferential to the business, to Google. I thought he was a little deferential, from my perspective, was a little hard to get transparency, get the documents that we wanted. We sent someone to trial every day of this whole thing. And there were days when Robert was just not doing anything. He was just hanging out in the halls. And so, what was the evolution of the judge from your perspective, kind of culminating in that decision on the deleted chats or chat history thing?
JASON KINT: Yes, we still await that decision, which seemed he really didn’t show his cards on where he’s going on that. And obviously, it’s really impactful to these cases. I’ll hit the judge in two different areas. One, regarding the openness—and I think the press is a part of that discussion too in terms of how they evolved in the fall. And we’ve talked about this previously. But just he seemed to, over time, better appreciate the need for the public access and the criticism and concerns that were out there and that were now surfacing inside the courtroom too. And with less reporters available to be there every day, both because of how closed off it was and also, frankly, some of the harms that we’re hearing about that Google has exerted on the industry, it was a problem. And so, I’m deeply concerned about that going into the AdTech case and just having rapid availability of exhibits and also unsealing of stuff faster and also having more of the depositions in public. There was just way too much deference to the commercial partners, et cetera, in the beginning.
The second piece, which I think is more of my complements to the judge, is having—and I’ve watched this in various forms over the years, but watching somebody go from probably not knowing that much about the topic in the industry to the level of his understanding of some very, very specific and technical elements of how all this works was incredible. I think he did a really good job. I didn’t walk out of there after closing arguments concerned that the judge didn’t really understand the case. So, that’s helpful. I think the public should know that, that we have a judge that really was thoughtful and diligent and now understands the topic really, really well.
TEDDY DOWNEY: And in terms of you mentioned he didn’t show his cards on the chat history stuff. I mean, our I mean, our reporter in the room seemed to think he made a comment about defaults. Like what the default behavior – he’s familiar with the default behavior.
JASON KINT: Yeah, yeah, yeah.
TEDDY DOWNEY: I don’t know. It seemed a little telling to me that sort of—because that came up also obviously with the Apple, Google. That was a direct lines of questioning about that and which he seemed not to show his hand there too much.
JASON KINT: The trial started with Hal Varian, the Chief Economist at Google, and evidence about the power of defaults. And we ended with Kent Walker sitting there listening to the judge talk about how could you make this the default? That if you have a document litigation hold, that everything’s going to get purged by default? So, it was nice.
TEDDY DOWNEY: Yeah, I thought that was telling. You didn’t think that was premeditated?
JASON KINT: Well, that’s what I believe. But the judge made a comment, I thought, I don’t believe Google would do this intentionally. Like he tried to give them the benefit of the doubt on the intent piece.
TEDDY DOWNEY: Got it. I couldn’t agree more with you. I think that’s going to be a big issue. It’s come up in other trials. Ostensibly. it will come up again in Google AdTech. What were some of the other big things that Judge Mehta was focused on and sort of how you thought that played out in the closing arguments?
JASON KINT: Well, I mean, I think the biggest question and where I can’t—it’s hard for me to wager where he’ll go on this. I mean, the comparison to Microsoft was very clear, and they ended that way too, by even kind of cleverly taking some language from the opinion on Microsoft from D.C. Circuit and laying in this case, replacing the words basically, and described it as it fit like a glove. And so, that’s out there. It’s clear to me—and whether or not the buying of defaults in search from Apple and Samsung on down—whether or not that map’s in his mind, it does to me, watching the industry for the last 20 some years. That’s everything, especially when you recognize the feedback loop and the importance of the data that feeds back in that maintains that monopoly. That it really is about maintaining the monopoly and not how they got here. But that piece, whether or not it’s foreclosure or the foreclosure discussion, I think is probably the thing that’s out there that I can’t bet how he’s going to, you know. I think it’s better than 50/50 that he’s going to go in the favor of the Justice Department, but that’s me.
TEDDY DOWNEY: And then there was talk about Google’s ability to raise price with impunity. That came up. I think a lot of people are pointing to that and some of the other things that the judge said that are more around market definition as well. That seems pretty clear that the DOJ is going to win there. But I wanted to get your take on that. Is there any element of this where it’s like Google or the DOJ you think is sort of the heavy favorite to come out on top? Market definition is usually one of the most controversial things, one of the best places for the companies to win. What was your take on the talk about pricing and market definition?
JASON KINT: Yeah, market definition, I wasn’t concerned. I wasn’t concerned in the fall, and I wasn’t concerned in closing arguments. And the judge asks a lot of questions—a lot of questions—during closing arguments. And it was almost like he was writing the opinion, in my mind, as he was asking the questions. But it didn’t seem to me at all a question that the market is general search and that TikTok’s not in that market. You tried to put them in there. Meta’s not in that. To be clear, Facebook’s not in that market. And the vertical search companies aren’t in that market. And the judge seemed very clear on that to me.
So not a question on market. And on ad pricing, could they raise prices by more than five percent? I mean, they’ve got the head of advertising, who just left after being there many years, who said, yeah, we could raise it by ten percent. We could raise it by fifteen percent, yeah. And you see emails of how they did that deeper in the documents. And so, it’s shaking the cushions to get to earnings, manipulating pricing. I think that was all entered into evidence. And so, those allegations seem pretty solid to me too.
And then, defaults matter. Like, yeah, that’s been out there from the very beginning. But we finally got the number of $20 billion plus for Apple in 22 and 40 percent of net revenues. So, you’re paying 40 percent of net revenues and $20 billion for something that doesn’t matter. No. I mean, that’s ridiculous. So, I think the judge gets that too.
TEDDY DOWNEY: So, if we put our prediction hats on a little bit, I know it’s hard to see where the judge is going, but it seems like you’re thinking DOJ is going to win on at least some of this. Like, maybe not everything, but at least some of this, on the law. I think the consensus is probably that DOJ is going to prevail, at least on enough to go to a remedies trial. But the real question is, on the one hand, really how willing is Judge Mehta going to be on the remedies discussion if it gets there? I think this is a little bit hard to prognosticate, but I would be interested to hear your thoughts on what is a good remedy here? And then I want to follow that up with a question of there’s all these other cases out there as well and sort of talk about a more broad remedy. But just for this case, where do you think the remedy conversation will go if, in fact, DOJ does prevail?
JASON KINT: If the DOJ prevails, then I do think that the App Store case with Judge Donato in the Northern District of California is relevant. Because, for as complex as this market is, I don’t think—and I think we heard this a little bit from Mehta—he doesn’t want to have to do behavioral remedies that put the court in a position where they’re entangled in enforcement going forward? Which kind of leads you towards, I mean, we’ve learned a lot, by the way. Pay attention to the EU, for instance. Behavioral remedies—some people said this years ago and I think they’re proving out to be right—they’re very difficult with a company like this.
So, I think that leads towards structural remedies. And you’ve got a good percentage in the market, even though the market—the case itself was focused on Apple and some of the smaller browsers’ operating systems and it wasn’t focused on Android and Chrome. The fact that they control those user agents and get to decide the default for those is, I think, relevant when you get into remedies. Because they have a certain size of the market through their operating system and through the mobile browser. And so, if you’re going to think about structural, then I think your mind naturally goes there.
And then on the advertising business too, the separate trial coming in September. But it’s clearly a problem—as much as Google’s always said there’s a firewall between search and advertising—there’s a problem in the way that currently exists.
So, the only thing I’d add, Teddy, is—and this gets a little bit more complex, I think, for the judge to think through. But I think I’d really want to amplify this for anybody who’s following this case and how it’s playing out is AI. And I think that that should be a consideration in the remedies too. Because I think conventional wisdom walking into the trial in the fall, was that AI would be a part of Google’s defense. Like Google could be disrupted because of AI. And so, the market’s changing. And I think they tried to paint that picture a little bit in the beginning. But I think the case closed with—and I think the judge gets this—that Google has a substantial advantage in AI and where the future’s going because of the 98 percent of mobile search queries that they have in the market share every day. And so, I think you also have to think about data and how the AI marketplace is going to play out because of Google’s advantage, if that makes sense.
TEDDY DOWNEY: Yeah. And before we get off the search trial, we’ve got a question from the audience. What were the biggest surprises or revelations from the trial? I’d add in, was there any evidence that you thought was highlighted that really stood out to you? And then I want to talk about some of these other cases after that.
JASON KINT: I think the stuff in the advertising area stood out. Because when you know the people that are on the emails and you see what they call a code yellow, which is a crisis sort of communication of we’ve got a problem, and then how they reacted to that. And the internal debates between, I think it’s Ben Gomez. I think he was like the head of search, kind of the organic, the church side of the business, if you will, for many years, and kind of showing their discomfort with shifting consumers over to the commercial side, et cetera.
So that sort of evidence was really compelling, I thought, when I was in the courtroom in the fall. And I must say Apple came across as a partner to me, clearly trying to protect their business interests. And that’s a lot of profit to Apple that’s at risk depending on how this plays out. And I thought Microsoft—it doesn’t miss me how ironic it is, but Microsoft came across, and Nadella came across, as good citizens in that trial. Which is a little surprising.
TEDDY DOWNEY: Yeah. And in terms of remedy, I do want to ask this question. What about not letting Google ever be the default as a remedy? Because one thing they say a lot is, oh, we’re the best. People will just switch to us anyway. Clearly this connection with Apple is problematic, right? Like that payment. So, could you defend a situation where you’re like, look, you just can’t ever be the default? Given what happened when they were the default and the monetary value to the partner of being the default. What do you think about that?
JASON KINT: I just don’t think it makes—I think that’s kind of what the EU is doing with choice screens and stuff. But it doesn’t hold them liable for abusing if you determined that they abused their market power to maintain their monopoly. It doesn’t solve for that. Because they now have 98 percent of mobile search and a feedback loop that makes it very hard – hard to impossible—to compete with them because of the quality that they’re able to maintain because of how they got that market power and the feedback loop. There was a part of the trial that was—back to what was also compelling. Sridhar, who ran Neeva and was at Google for a long time, talking about launching Nebo, which was a competitive search engine. It tried to compete in search. And who better to do that? And he went through the issue of if there’s a choice screen, they have such a strong advantage because of the volume of query data that they have every single day, and the clicks, the click data, from that. So, I don’t think that solves for the issue, I guess, to get to the point.
TEDDY DOWNEY: We’ve got another question here. Can you elaborate on the potential remedies again? Is it just that Google cannot have an exclusive default agreement with Apple anymore? Or will it be that Google is not allowed to do any revenue sharing deal with Apple? This sort of dovetails with another question we got, which is would a remedy here have an impact on other Big Tech companies outside of search?
JASON KINT: Yeah. Well, I mean, if they can’t do the deal with Apple, which I think is a potential remedy, and Google—and some of the evidence we saw, Google said if no default, then no revenue share is what they told Apple, as part of their negotiations early on. And so, if there’s no default, therefore, there’s no revenue share anywhere close to what there is, then in theory, there’s some percentage of that $20 billion a year of revenue that goes to the bottom line for Apple at risk. And on the Google side, they have a world where they now have to compete based on the quality, which again I don’t think is a good remedy. But that is a possibility, to answer that question.
TEDDY DOWNEY: And eventually, I’m going to ask you a question about the other cases. But I want to ask this question last. Looking at a lot of these documents, I would say Google did not come across as a very good corporate citizen in terms of whether or not they were competing fairly, to your point that those documents related to Google and Apple all around the default agreements, how they talk about the default agreements. And I sort of read Mehta’s kind of snarky comment about default on the chat deletion as him sort of coming around to that maybe these companies shouldn’t get such deference when it comes to them making morally right decisions. But you said that he pointedly kind of said, I’m sure they didn’t mean this intentionally.
That seems pretty good for Google. Looking through all of these documents, the judge still kind of has in the back of his mind a little maybe these are good—these aren’t bad actors, despite what he’s looking at on a day, you know, he’s spending all this time delving into these documents. That’s not what comes across my mind reading those things. And so, I’m curious, just putting all that together, is that a good sign or a bad sign for the judge, that he sort of made that comment? I’m trying to piece all these comments together. And I wasn’t in the courtroom. So, you being in the courtroom, I thought you might have a better feel for this.
JASON KINT: Yeah, I felt like he asked a lot more questions during closing arguments. And I did keep in mind myself that not every question he was asking was a tip to me in terms of where he’s going. It could be trying to get certain answers out of them or to see how they react. But he did make some sort of comment like that as we were winding down the sanctions. And the thing I’d put up against that though is I thought Judge Donato’s decision on the sanctions was crystal clear. And you need to assume that there was intent here, and that there was evidence that they wanted to purge. And so, we’ll see where he lays out.
You’re also making me think, Teddy, about there was some discussion in the—I think it was towards the end of the closing arguments around what should Google have done differently back in the day? Because if they had the best product and they wanted to get it to consumers and Apple was willing, what should they have done differently? And I think some of the discussion around that was like, hey, recognize that you have a monopoly. And you need to behave a little bit differently because you have a monopoly. And so, I think that was an important point. And I think the judge very clearly heard that too. And so, when you see the evidence, it’s not like you’re seeing the evidence of just general commercial deals. You’re seeing it of a company that knew it had a monopoly and had market power and wasn’t being more careful, at least in my assessment, and thoughtful about the rest of the industry.
TEDDY DOWNEY: And I think the thing that you’re the best at versus pretty much everyone out there is kind of taking all these other cases and looking at everything a little bit holistically. We’ve got the Epic case. We’ve got this case. We’ve got AdTech coming up. You’ve got Action in Europe. You’ve got other private cases out there. Let’s just take a step back. What do you see as kind of the big things we’re going to see in the next year? You know, we’ve got the Epic Google. You know, we’ve got Google basically saying—I mean, I don’t want to put words in your mouth that I’m curious to get your take on that—but effectively saying, hey, we’re like fighting any real remedy there. You’ve got a legal decision here, a possible remedy trial. Then you’ve got AdTech. What should we be looking for? And how does this ultimately shape a final outcome of a remedy that actually solves Google’s antitrust issues? Because they’re not going—even if they get a behavioral remedy in Google search, I mean, that’s just like this is the beginning really. So, I’m curious how you think how all these cases play and also what you think the big ones to keep an eye on are?
JASON KINT: So, I think there’s a lot of information that can help guide the court, but also the plaintiffs, in terms of the remedies, the appropriate remedies, that is happening. And it is hard to keep track of it all because I think it all matters. And so, like I referenced the EU and what they’ve done with Google in terms of really big fines and working through behavioral remedies to the point of now having the Digital Markets Act rolling out to enforce restrictions on gatekeepers where they determine they’re gatekeepers. And it’s really, really hard. And we’re seeing the messiness of it.
And also, there are other cases that don’t involve Google. I mean, Apple is in the courtroom I think right now at this moment that we’re doing this interview and it’s hearing two of three about remedies for its Epic case. Apple mostly successfully defended itself. But on the steering remedy and self-referencing issues, the judge seems to be leaning towards Apple is not complying and they’re messing around with compliance. And it doesn’t look like it’s going in Apple’s favor.
So, those are all lessons to us that like trying to create behavior remedies around companies that are worth a couple trillion dollars and affect the entire industry—and nobody in the industry wants to be on the record against because of how big they are and powerful they are—is really, really hard. And so, I think that leads you toward structural changes, in particular with Google. I don’t know how you come up with behavioral remedies for these issues and the way they’re playing out. And I think the AdTech trial starting September 9th is probably the most—I’ve always thought it was the most important case. I think it certainly is for publishers and advertisers. And I think there’s a lack of attention on it that needs to be resolved in the next few months. And the Texas State AG version of that trial will also start in the first quarter of next year. But I think September is really important in the Eastern District of Virginia.
TEDDY DOWNEY: And let’s just assume that we get into a remedy stage around all of these situations, all these lawsuits. Because maybe Google wins one. Maybe DOJ and the states don’t win them all. But at some point, we’re going to be talking about remedies in one of these cases, I’m sure. What would actually work? What kind of divestitures would actually work and would actually go a long way to solving the problem? And I think I would like to remove it a little bit from what each case is about and just get your thoughts about what would actually work. And then the audience can kind of sort of like use that anchor to that and sort of see how effective, what ends up happening, sort of compare it that way.
But you’re an expert in this industry on how these markets work, the customers and the players, on all the sides, the advertisers, the publishers. What would work? What would actually, maybe not 100 percent, but what kind of divestitures would really address some of the conflicts of interest, address some of the market power issues, that would create a fair playing field?
JASON KINT: Thank you. And I appreciate all the others out there that are thinking about this. I’m interested in reading anything and everything. But at a very basic level across all of these cases—and we’ve said this for more than a decade, that the market power is built primarily off of data and the unique access to data. And so, when I think about remedies, I think about ways to isolate that data that gives them the market power that no one else can actually compete with.
And so just to give some actual, make that a little bit more actionable, we think about the search case. The search case that we started with here is very much built around the idea that if you’re above a certain market share and you’ve got access to a certain amount of data from search and click query every day, including for a certain percentage of searches that nobody’s ever seen before. They’re just completely, entirely new searches, which Google calls long tail searches, I think, or tail searches. That’s an incredible advantage because you have the scale in real time to feed that back into and manage the quality that no one else can. And no one else is going to enter the marketplace as long as you have that advantage on the data side.
If you have a browser and an operating system which are supposed to be user agents and work entirely for the user, is it right that same company that dominates and has a majority of the operating system market, and a majority of the browser market, is able to have a unique look into any and all data that the user generates as part of their activity to feed back into the search engine? So, I think that leads you to, okay, could we structurally do something about cutting that off? And I think that’s where you have to go on the data piece.
And on the advertising side, that was, I think, easier for probably the court to understand. It’ll be interesting because it’s a jury trial. So, the jury will have to understand it too. But there’s a comparison that’s been made that I think is helpful for people to understand to the equities and stock market, and that if you’re dominant on the buy side and you’re dominant on the sell side in a supply chain, that that’s problematic, especially in a real time auction world. And so, I think there’s a template there that will get discussed for just structurally separating the buy side and the sell side at Google, in some way, shape or form.
TEDDY DOWNEY: And can they just sell off parts of the business for that?
JASON KINT: They can sell it off. They could divest it into a separate entity. There’s lots of different ways they could go. And by the way, there’s legislation—as much as we might be skeptical of legislation at this point. Senator Lee and Klobuchar’s America Act is an antitrust bill, legislation, that says if you’re above a certain size in the advertising marketplace, you can’t be on both the buy and sell side. And so, you’ve got a piece of legislation that will accelerate that remedy pretty quickly. So, I think that’ll be interesting to watch.
TEDDY DOWNEY: Yes, and it ostensibly gets a lot easier to move legislation if something has already been a big judicial decision. You don’t want to wait for the appeals in the Supreme Court. Any other cases out there kind of like what we’re seeing play out in Epic, Apple, Epic, Google? Actually, we talked about Epic and Apple where the judge is very unhappy with Apple’s behavior and its remedy after giving Apple a big win in court.
JASON KINT: Right, right.
TEDDY DOWNEY: Epic lost.
JASON KINT: Right.
TEDDY DOWNEY: I mean, Epic won against Google. Lost against Apple.
JASON KINT: After Apple.
TEDDY DOWNEY: Yeah, after Apple. How big is it going to be when that remedy gets made for—how big of a decision or how big of an impact on all of this are we going to see from that decision? And is there anything that you’ve seen so far there that sort of indicates that Google is kind of taking an Apple like approach.
JASON KINT: I haven’t seen it yet in terms of taking an Apple like approach. And Apple again was just mainly—Apple’s got a tricky game because they also have the Digital Markets Act rolling out too and it has similar issues for Apple in terms of having to open up the purchases on the App Store to third parties. So that way they just can’t—Apple historically takes 30 percent of new purchases and 15 percent of renewals. And then they have special deals if you buy into different programs that have all sorts of other obligations. And now they’re going to have to allow developers to integrate with third-party purchasing platforms. And they’ve attempted in Europe to find a different way to get that revenue. And in the case of the Epic remedy, they’ve said we’ll charge 27 percent to the outside party and 12 percent for renewals rather than 30 and 15, which is a fairly outrageous way to try to keep the money coming. And by the way, if you’re a publisher, if you want to get those better rates, you also have to give them your news for Apple News, which they compete with you on.
And so, there’s all sorts of ways, you know, they’re moving around the chess pieces to try to keep their profits and revenue, as you can imagine. And in the case of Apple, a huge part of their growth is the services business. So, I think if I were Google, I’d be looking at that saying, let’s not do what they’re doing because I’ve got a bunch of other antitrust risks playing out. And search is my mothership. And so, I don’t know. I feel like Google will go a little bit more in line with—especially because they had a jury trial that they very clearly lost too—more in line with the developer world than Apple has been.
TEDDY DOWNEY: And I think this is a good place to talk quickly about Europe because I think Vestider has taken a lot of heat—certainly took a lot of heat at the conference that we did earlier in the year with Cristina Caffarra—for just not coming up with—not actually affecting these Big Tech, despite years and years and years of lawsuits and settlements and things like that, big fines and things like that. But she did say, when it comes to AdTech that they probably need to break Google out, right? She is on the record saying that. We are expecting a decision this year on that case. How big is that in terms of—you mentioned some of the things that we’re seeing in Europe not working. How big is it if we get a decision from the EU either – essentially, it could come even before the Google AdTech case starts, the trial starts, or at some point this year. How big is that in how all this plays out?
JASON KINT: I think it’s just another piece of evidence that—it’s not surprising. Because if you really dig into the complaints, you see that the state AGs who filed first in the U.S., also took lessons from the UK competition investigation, from the CMA and from Australia, ACCCs have done an investigation and from the EU. And so, they’re all learning from each other and getting access in different ways to information. And they’re coming to the same conclusions.
So, it’s not a surprise. I think it’s helpful. Because Google and the various proxies like to say this is Europe just getting back at the U.S. out of jealousy. And obviously, that’s not the case when the Justice Department and the state agencies are all making the same case.
What their actual remedy is if they go towards structural separation in the EU, I think that’s helpful. Because it just helps point us in that path too here. And I think the thing that’s underestimated—this is my own opinion—is that the AdTech separation requirement, I think, has a bigger impact on Google than the market realizes. And the data that they’re able to get from the rest of the web by having the advertising business across the rest of the web is significant and feeds back into that same feedback loop.
You’re seeing this play out a little bit in kind of the discussion around third-party cookie deprecation and privacy law. But Google’s solution for that, if they ever actually pull the trigger, is putting more of that into the browser. So, as soon as you start talking about making Google have to separate out the browser and/or the operating system, and the advertising business is divided, I think Google loses a lot of its fingerprints that it has over the web, and frankly our lives, in terms of us carrying around devices 24/7. And I think that’s problematic for them.
TEDDY DOWNEY: I’m going to play a little bit quick devil’s advocate, which is that it may hurt them in terms of like how much they grow and how profitable they are currently. But they still have, I mean, they’re still so dominant all the way through. I mean, they still have so much power in all the other businesses that they have. I mean, it’s not like it’s just in these specific areas and they’ll still be a giant player in a big business, right? I don’t want to play devil’s advocate. I kind of want to push back a little bit and get your take, which is that like I think they will be fine financially if they get broken up. That’s kind of how I’ve always thought about this. They’ll have other ways of making money. It just won’t be in this.
JASON KINT: How else will they make money, Teddy, besides search?
TEDDY DOWNEY: Well, look, I mean, I’m not going to tell them what they should or should not do, but you can charge money. They could charge for stuff. They could spin off their other businesses. Like what is a standalone Google Maps worth? It’d be one of the biggest companies.
JASON KINT: Sure.
TEDDY DOWNEY: On the S&P 500 if they just spun that one thing out. You know what I’m saying?
JASON KINT: Yeah.
TEDDY DOWNEY: And by the way, I don’t have an answer. I don’t know what they would do. But I’m just saying they have so much power that addressing these conflicts of interest creates a healthy market potentially. And they’ll still be players in that, right?
JASON KINT: Yes.
TEDDY DOWNEY: It’s like more volume, more stuff going on. By the way, it’s just going to be like with the Apple case. It’s like, guys, if you just didn’t do this type of stuff, you might have a better product. There might be more benefits to you that you don’t see. And so, from that standpoint—I’m going to ask this in a different way. Which is I’ve always thought that if there’s enough pain all around, if it looks like they’re going to lose Epic, Search, AdTech, EU—and they’ve got other cases by the way. We’re not even—we could go on all day. I literally have a spreadsheet that I’ve been working on. It’s taken months just to list out all the lawsuits that Google has and where they are. I mean, I have two people working on that full-time basically. We could be on here for days. But at a certain point, does it just make sense to just come to the table with the DOJ?. And my conversation with you makes me think no. They will drag this out for as long as they can. There is just no path to an agreement. It’s just not going to happen. But I do want to leave it up to you to say is there any opportunity there should things get bad enough? Or we’re really just going to be tracking how this plays out through the court system?
JASON KINT: It’s a good question. I mean, of course, if they could proactively—if it’s going to happen one way or the other—proactively laying out the roadmap for how it happens would be better for them. I think their challenge is timing. And also, it’s a fairly informed—I will complement Texas. I’ll complement the Justice Department. I’ll complement our FTC, who’s not involved in these cases. And also, the UK technology staff and the EU, they understand these businesses and the issues because it’s dragged out fairly well.
And so, it’s not like they can proactively say, here’s how we’re going to divide ourselves up and everything’s good and hide the ball. I felt like they tried to do that. There was a news report where Google was supposedly considering separating its advertising technology business internally. They were going to put up a firewall and put it under a different division of Alphabet or something. I would guess that Google—like that was intentionally like it was being discussed. Because if they could get away with that and make the trials go away, that would be a homerun for them. And no way. That’s not happening. Like the Justice Department in Texas, they understand this. And putting it in a different division, but then still allowing the data to flow back and forth, would be a terrible outcome.
And so, I just don’t think they’re going to be able to get away with an approach where they can hide the ball. Maybe under a different administration or different groups, they could get away with it. But I think it’s about timing still. And timing for them is not good right now. Because I don’t think they’ll be able to get away with what they want.
TEDDY DOWNEY: So, I want to ask one last question. At a minimum, let’s just talk about how the market reacts to not being able to do a default anymore. Apple, all of a sudden, is out all this cash, huge amount of profit. No incentive not to enter anymore. Do you think even if the remedies aren’t full blown, like separate everything, we’ll start to see more competition of these big Goliaths against each other? Or is that necessary? We really need the structural form if we’re ever going to see something like that?
JASON KINT: I think the latter. I think Satya Narayana Nadella, the CEO of Microsoft, was probably the most powerful testimony evidence around that. And it was—I think he said something. I think it was him. It may have been the CTO who was also very interesting. But it was we’re not going to be able to compete. We’re Microsoft. We’re not going to put investment in there unless one of two things happen, I think is the way he framed it. Either there’s the regulatory intervention or something changes in the marketplace so dramatically. And that was even in the context of their clear advantages that they’ve been able to acquire through OpenAI in the marketplace. But they understand that having a couple percent of the marketplace is not a good investment, especially if Google still has Chrome and Android. And I think most people would agree the best search experience out there. That’s another reason that people use it beyond the market foreclosure. So, just the feedback loop is there. So, I just don’t see the market changing significantly without a more serious remedy.
TEDDY DOWNEY: Last question and then I’ll let you go. What about other non-litigation elements, tools in the toolbox, tools in the regulatory legislative toolbox, state laws, FTC cracking down on privacy, privacy rulemaking, other rulemaking? Do you see anything else as sort of complementing this litigation in a way that drives the market to be more fair?
JASON KINT: Sure. Yeah, I mean, I think a lot of it is sitting in the Senate holding pattern right now with—I think leadership, Schumer, needs to introduce it. But you’ve got American Act, which helps with the advertising business and deals directly with Google. You’ve got ICOA and the self-preferencing. These are all bills we’ve endorsed, by the way. And you have OAMA, Open Apps Market Act. That’s the App Store bill. And those all would have impact, not targeted specifically at Google.
And then in my own world, in my own heart, of the news companies, you’ve got JCPA, which is a competition related bill that basically I think has ended up in a much better place in terms of, hey, if you’re dealing with an imbalance in bargaining power with a Goliath like Google, then news is actually essential to democracy and you need to be able to have a structure for paying for that enforcement of the paper world. And so, there’s a series of bills that we’ve endorsed and I feel pretty strongly need to move.
And then the only other thing I’d say, Teddy, that’s interesting because we now have federal privacy legislation that’s been introduced or is about to be. They have a draft of it. And I would make sure to consider the intersection of data and privacy and how those rules play out with market power. And we’ve learned a lot from GDPR and how Google will leverage its power to basically get a single consent to use data however they want in a way that no one else can. And we’ve also learned from the Germans. The cartel office in Germany has a decision against Meta and against Google playing out where they’re saying you can’t use data across these platforms at all. So, Meta can’t use data from Facebook on Instagram or vice versa. WhatsApp and the ad business and the same with Google. And I think those are very instructive to how privacy law can also deal, if you really think it through, can deal with market power too.
TEDDY DOWNEY: Well, I’m super excited to keep watching all these trials. We will obviously be at them. I’m sure you’ll run into our journalists there. Thank you so much for doing this. Always great to chat with you. I can’t thank you enough.
JASON KINT: Thank you for including me.
TEDDY DOWNEY: All right. Thanks, everyone, for joining us. This concludes the call. Bye-bye.
