Can Google be trusted without a break up?

On the third day of the two -week appeals in the advertising technology file of the Ministry of Justice against Google, judge Leonie Brinkema resolved the argument to a key question: confidence. Brinkema interrupted the testimony of an expert from the DoJ with a hypothetical: should it emit a strict order modifying Google’s behavior, could this solve the problems at hand if “you had the confidence that Google would actually act in good faith?”

The question seemed particularly sharp, given how the Google Brinkema trial chaired last year. For three weeks, the DoJ repeatedly presented examples of Google employees would have used cat messages to avoid leaving a paper trace for the discovery. Brinkema later said that the practice represented “the systemic contempt for the rules of evidence”. Although she chose not to sanction Google for her lax approach to preserve evidence, she warned not to make her decision to tolerate behavior.

Soon, Brinkema will decide the difficulty in repressing the monopoly she ruled Google in advertising technology. This decision may depend if she thinks she will follow the rules this time.

The proposal for appeal by Google implies an order of the court prohibiting specific commercial practices and obliging it to engage in the process of advertising auctions in a way similar to its competitors. But the Doj says that it easily leaves it capable of monopolizing the market again. The government wants to completely withdraw Google’s hands by running it Adx Adx and an open source part of (and perhaps even sell) its DFP tool for web publishers.

It is the second time in just a few months that a judge has faced the question of breaking Google. In a separate case on the monopoly of Google’s research, Judge Amit Mehta refused to do so, opting for low -flood remedies such as prohibiting anti -competitive practices and data sharing. The facts which led Mehta to decide against a breakup have no impact on this case, argued the government in its declaration of opening. However, Brinkema’s decision could be an indicator of how judges share the prudence of Mehta, because more and more cases against large technological companies take place towards a trial.

The DoJ was still in the middle of his chief case on Friday, but Google’s lawyers were already leading to their main argument: that the government under-selling how difficult and risky its requests are. Google’s advertising director Tim Craycroft said the Doj’s proposals were “naive” and “incoherent”. This line of thought seemed to land with the judge in the middle of the week. “The devil is in detail,” she said in the testimony of Jonathan Weissman, an expert witness to the Doj on the technical feasibility of a break. After having compared the modification of Google’s advertising tools to the modification of tires on a car, Brinkema noted that a change for snow tires could cause “more jumped” driving for the user.

But during the testimony of Craycroft, Brinkema seemed to entertain an option even more extreme than the government had not asked: to completely close ADX. It was apparently something Google himself considered in recent years in an analysis that she called “Project Monday,” said Craycroft.

“Why is that not a very simple and elegant solution?” Brinkema asked, after Craycroft noted that another large technology company could buy ADX and create its own monopoly. Although several announcements of announcements exist today, the court noted that they were denied a fair playground due to tactics such as the booking of full -time offers to access the huge base of Google advertisers via its own tools. The publishers testified in the responsibility trial which made the start almost impossible, even if ADX invoiced a supra -competitive rate of 20% on transactions. Craycroft told the judge that ADX’s depreciation could Be an elegant solution, but this would also get rid of other useful features of the product.

Brinkema has clearly shown that she wanted to learn what is really possible, because she considers the options to level the fields of play without harming publishers and advertisers that count on Google products.

Google noted that what is called the commercial deactivation of ADX would be achievable within two years, said Craycroft, in particular the unloading of the IP, the movement of customer contracts and the supply of reference code to guide the buyer through the duplication of product functions in its own systems. But he pointed out that Google could not realistically provide the source code guaranteed to operate in the technological battery of an unknown buyer, as requested by the DoJ. The former Facebook’s capacity engineer, Goranka Bjedov, who helped migrate Instagram and WhatsApp during their acquisitions, said the reference source code would be sufficient for a complete migration. If Brinkema finds a possible assignment, she will have to decide if she trusts Google enough not to force one.

Even after having helped Google lawyers to develop their remedy proposals, Craycroft told the lawyer for Maj Matthew Huppert that he could not commit to reducing the pace of 20% of Adx, that the judge had judged above a competitive level, and said that a link between the DFP and access to ADX in real time, a collision point for publishers, was ” been built ”.

The answer to Brinkema’s question about confidence was not necessarily reassuring for Google. Robin Lee, Harvard’s economist, she asked, said the problem was the number of different ways to get around Google in the intentions of a court order. Lee said there was an almost exhaustive list of methods to tilt the balance in favor of Google, and there are all the incentives to take them.

Google’s long -standing criticisms have been disappointed after Mehta’s decision was no break. If Brinkema reaches a similar conclusion, the director of commerce income, Jed Dederick, said: “I think there will be the feeling that they got out.”