INTEREST OF AMICUS CURIAE

American Economic Liberties Project (“AELP”) is a nonpartisan, nonprofit research and advocacy organization that supports fair and consistent enforcement of the antitrust laws. It was founded to translate developments in antitrust law and policy to the broader public, while ensuring that lawmakers, agency officials, enforcement personnel, and courts apply the rich history of antitrust law to contemporary market realities. AELP’s interest in this appeal stems from its expertise in big tech monopolies and its studious observation of the instant case. AELP has studied this case from its inception. Its writers attended every day of the liability and remedies phases of this case and published near-daily trial updates for public consumption. AELP’s inquiry into the broader circumstances of the case has taken the form of technological research, publication of white papers, participation in relevant legal and academic forums, and submission of an amicus brief in the district court related to proper remedies. AELP submits this brief to share its expertise on how the remedies ordered by the Court have permitted Google to use the fruits of its unlawful conduct to capture the GenAI markets that have emerged in the two years between the district court’s liability ruling on August 5, 2024 and today.

SUMMARY OF ARGUMENT

“Google has no true competitor,” and its “monopoly in general search has been remarkably durable.” JA__(Liab.Op.200.) Today, exactly two years after the district court made that finding—and over eleven months after issuance of a remedies order—Google maintains an undiminished monopoly over the GSE market. And, as detailed below, it is rapidly gaining share in related but distinct GenAI markets. This failure of the court’s remedy results from multiple legal errors, and a conceptual one. The district court erroneously interpreted a technological change as a competitive threat, instead of realizing that this inflection point heightened the urgency to restore competition.

Google illegally maintained its GSE monopoly in part through exclusive distribution agreements and the payments that secured them. These agreements made Google’s search engine the default at nearly every access point in the GSE market, including browser search bars, Android home-screen search widgets, and voice assistants such as Siri. JA__(Liab.Op.24.) The scale those agreements produced is “the essential raw material for building, improving, and sustaining a GSE,” and Google’s rivals “cannot match” it. JA__(Liab.Op.226.) The district court had a “duty” under the Sherman Act to craft remedies that would restore competition in the GSE market and prevent new monopolies from forming.1 See infra Sec. I. This Court has its own duty to ensure that ineffective decrees are transformed into effective ones. United States v. U.S. Gypsum Co., 340 U.S. 76, 88–89 (1950); United States v. United S hoe Mach. Corp., 391 U.S. 244, 251 (1968).

Plaintiffs correctly challenge the district court’s refusal to prohibit Google’s payments for default placement as a breach of its duty to restore competition, for the reasons set forth in their briefing as well as those detailed below. Google incorrectly challenges the data-sharing and syndication remedies. (Google.Pr.Br.85–98.) Those provisions are properly aimed at curing “Google’s massive scale advantage,” JA__(Rem.Op.129), which the district court found in its liability ruling to be “a key reason why Google is effectively the only genuine choice as a default GSE,” JA__(Liab.Op.233).

This brief does not separately discuss Google’s illegal maintenance of its search text ads monopoly, but the same legal principles govern remedies for that market.

The remedies Plaintiffs seek and those challenged by Google are, as the district court acknowledged, interrelated. JA__(Rem.Op.132.) In fact, as the district court also acknowledged, the data-sharing and syndication provisions are “blunt[ed]” by the district court’s decision not to adopt a payment ban. JA__(Rem.Op.127.) As the Colorado Plaintiffs explain, the former set of provisions “improve quality,” but they “do not create a path to users.” JA__(Col.Ans.Br.11.) The payment ban would open up that path through default placement. JA__(Col.Ans.Br.11.) Thus, the district court’s refusal to prohibit default payments cannot be reconciled with its findings about how such payments create incentives that foreclose markets, JA__(Liab.Op.226; Rem.Op.120), or its finding that “[t]he rationale for a payment ban is straightforward: It would pry open the market to competition,” JA__(Rem.Op.120, 128).

The district court reasoned that capital is now flowing into GenAI technologies at an “astonishing” rate and opined that these “new realities g[ave] the district court hope that Google w[ould] not simply outbid competitors for distribution if superior products emerge.” JA__(Rem.Op.127–28.) As explained below, this speculative hope was unfounded and legal error. Developments in various GenAI markets in the months since the district court’s remedies opinion underscore the urgent imperative for a payment ban, and possibly more. See infra Sec. II.A.4.

Amicus AELP explains below how Google has wielded its scale and revenue—among the fruits of its unlawful conduct—to foreclose competition, impair rivals’ opportunities, and rapidly expand its position in GenAI markets, while preserving its dominance in the GSE market. This is precisely the result antitrust remedies are supposed to prevent. Indeed, the “hope” about GenAI that the district court deployed as “caution” in allowing default payments to continue is the very doubt it was required to resolve in Plaintiffs’ favor. United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 334 (1961); Ford Motor Co. v. United States , 405 U.S. 562, 575 (1972). After finding the GSE market to have been frozen for over a decade, the court identified an apparent sudden warming—marked by the arrival of GenAI—and identified threats that might jeopardize that thaw: Google’s default payments along with scale and revenue advantages no rival could duplicate. JA__(Rem.Op.107, 127.) The payments were a principal tool used by Google to maintain its monopoly, and the data and revenue acquired through default are among the fruits. JA__(Rem.Op.89–97.) Yet after identifying these market conditions, the district court failed to correct them. It found the GenAI market to be competitive, left the payments intact, and ordered the barest data- sharing and syndication remedies in its arsenal. Google is now using that payment machinery, and grounding its GenAI products in its search index, to entrench itself in the market the district court hoped would discipline it. These errors demand remand to the district court with instructions to institute a payment ban, keep and consider strengthening the data-sharing and syndication remedies, and revisit Chrome divestiture and any other remedies that would pry open competition in the GSE market and protect competition in GenAI.