Posted by Dave Heiner 
Vice President and Deputy General Counsel

Government competition agencies are increasingly focused on Google’s growing power in search and online advertising. The U.S. Federal Trade Commission, the U.S. Department of Justice and the European Commission have all determined that Google is dominant in certain markets, including search advertising. In late 2008 the DOJ was prepared to go to court to block Google’s attempt to partner with its largest search rival, Yahoo!.  Last year the DOJ told a federal court that Google’s book search plan is anticompetitive in several respects. (One big problem is that Google would help itself to essentially exclusive rights to tens of millions of books—effectively locking out everyone else.) Last week the DOJ reiterated that view in court, even after Google had an opportunity to address the DOJ’s concerns. This week came news that the European Commission is investigating various aspects of Google’s conduct, including claims of retaliation, exclusivity and manipulation of search results to disadvantage rivals. The European Commission is likely to treat these cases quite seriously, given that Google’s share of search and search advertising is north of 95% in many European countries.

Google’s public response to this growing regulatory concern has been to point elsewhere—at Microsoft. Google is telling reporters that antitrust concerns about search are not real because some of the complaints come from one of its last remaining search competitors.

It’s worth asking whether Google’s response really addresses the concerns that have been raised. Complaints in competition law cases usually come from competitors. (Believe me, I know: I’ve been chief competition counsel at Microsoft since 1994, so I’ve seen plenty of competitor complaints.  Novell, when current Google CEO Eric Schmidt was at the helm, was never hesitant about complaining to regulators about Microsoft. Google hasn’t been shy about raising antitrust concerns about Microsoft in the last few years, either.) This is the way that competition law agencies function: They look to competitors in the first instance to understand how particular markets operate, the practices of dominant firms and the competitive significance of those practices.

Of course, as we have always said, it is vitally important that competition law authorities also listen to and assess the views of customers, business partners and everyone else affected by a dominant player’s business practices. Ultimately what’s important is not who is complaining, but whether or not the challenged practices are anticompetitive.

In this instance, there has been no shortage of affected voices. A quick Internet search will surface the growing concerns that have been raised by upstart innovators such as Ciao (owned by Microsoft), Foundem and ejustice.fr, as well as from industry groups such as the Federation of German Newspaper Publishers and The Association of German Magazine Publishers. Publishers, advertisers, advertising agencies and others want to see real competition in search and online advertising. As Google’s power has grown in recent years, we’ve increasingly heard complaints from a range of firms—large and small—about a wide variety of Google business practices. Some of the complaints just reflect aggressive business stances taken by Google. Some reflect the secrecy with which Google operates in many areas. Some appear to raise serious antitrust issues. As you might expect, many concerned companies have come to us and asked us for our reaction and even for advice. When their antitrust concerns appear to be substantial, we suggest that firms talk to the competition law agencies. (Complaining to Microsoft won’t do much good.)

As reflected in the news earlier this week, firms voicing these complaints have started to meet with competition law agencies, confidentially. (Firms – especially smaller companies – are often reluctant to voice their antitrust concerns publicly because they feel that they must continue to do business with Google and do not want to jeopardize their relationship with them.) Over the past few months Microsoft, too, has met with the DOJ and the European Commission. The subject of our meetings has been the competition law review, now completed, of the search partnership between Yahoo! and Microsoft. As you might expect, the competition officials asked us a lot of questions about competition with Google—since that is the focus of the partnership. We told them what we know about how Google is doing business. A lot of that entails explaining the search advertising business, which is complex. Some of that inevitably gets into Google practices that may be harming publishers, advertisers and competition in search and online advertising.

All of this is quite important because search is so central to how people navigate the Internet, and because advertising is the main monetization mechanism for a wide range of Web sites and Web services. Both search and online advertising are increasingly controlled by a single firm, Google. That can be a problem because Google’s business is helped along by significant network effects (just like the PC operating system business). Search engine algorithms “learn” by observing how users interact with search results. Google’s algorithms learn less common search terms better than others because many more people are conducting searches on these terms on Google.

These and other network effects make it hard for competing search engines to catch up. Microsoft’s well-received Bing search engine is addressing this challenge by offering innovations  in areas that are less dependent on volume. But Bing needs to gain volume too, in order to increase the relevance of search results for less common search terms. That is why Microsoft and Yahoo! are combining their search volumes. And that is why we are concerned about Google business practices that tend to lock in publishers and advertisers and make it harder for Microsoft to gain search volume.

Microsoft would obviously be among the first to say that leading firms should not be punished for their success. Nor should firms be punished just because a particular business practice may harm a rival—competition on the merits can do that, too. That is a position that Microsoft has long espoused, and we’re sticking to it. Our concerns relate only to Google practices that tend to lock in business partners and content (like Google Books) and exclude competitors, thereby undermining competition more broadly. Ultimately the competition law agencies will have to decide whether or not Google’s practices should be seen as illegal.