Judge Spares Google Ads Business From Breakup

Well, Judge Leonie Brinkema looked at Google’s advertising business, which the Justice Department spent years arguing was rigged about six ways from Sunday, and decided the proper punishment was to ask Google to behave better. I suppose that makes sense if you don’t think about it too long, which is probably the idea.

Now, understand, this was not a small case. The government didn’t accuse Google of running a slightly unfair lemonade stand. They accused it of owning the market where the lemonade stands buy their lemons, the market where they sell their lemonade, and the auction house that decides who gets which lemon and at what price, and then made all three shake hands and agree everything was fair. That is not a monopoly, that is a hand of solitaire where you’re also the dealer, the house, and the guy keeping score. And the remedy for this elaborate arrangement is a set of behavioral rules, which is a bit like catching a fellow dealing himself aces from the bottom of the deck and, rather than taking away the deck, asking him to deal a little slower where you can see his hands.

I don’t say the Judge is wrong, exactly. I say she’s cautious, and there’s a considerable difference between the two, though both wear black robes just as comfortably. Breaking up a business is a permanent thing, and permanent things make Federal judges nervous the way a rope makes a horse nervous - not because the rope’s dangerous, but because nobody’s real sure where it leads. Behavioral remedies, on the other hand, are the legal equivalent of putting a fellow on probation. Everybody gets to feel like justice was done, and Google gets to keep the store.

Here’s your bipartisan mirror, since I don’t play favorites among folks who deserve equal suspicion. The same government that spent years building this case, and presumably believed its own argument, is now expected to go home satisfied with a settlement lighter than what it asked for, and call it a victory for competition. Google, meanwhile, gets to call it vindication, having narrowly avoided the corporate equivalent of being sawed in half, and will now proceed to run the same three-legged race, just with a referee standing closer to the finish line.

The folks who buy and sell digital ads for a living - the actual competition this was supposed to help - get to watch this play out over the years it’s already taken and wonder if “restoring competition” means something different in a courtroom than it does at an actual market. I’d guess it does. In a courtroom, restoring competition apparently means the giant agrees to loosen his grip slightly, and everyone stands around checking whether his fingers actually moved.

The folks back home didn’t need years of Federal litigation to tell you what happens when the man who owns the racetrack also owns half the horses and sets the odds. They just wanted to know if anybody was finally going to make him sell the horses. Turns out he gets to keep the horses. He’s just been asked, real politely, to stop whispering to the jockeys.