Monopolies are not illegal according to current case law. However, possessing monopoly power in the relevant market and deliberately acquiring or maintaining that power through unlawful behavior violates section 2 of the Sherman Act, as United States vs. Grinnell, 384 US 563, 570-71 (1966) informed us of this. Illegal behavior has been understood as anti-competitive behavior. As indicated in the Amended Complaint against Google filed on January 15, 2021 in the United States District Court for the District of Columbia, the United States Department of Justice (the DOJ) and 14 states alleged anti-competitive conduct that violates §2. There were no reply arguments filed by Google. This article will discuss the parallels to Microsoft’s original litigation in the US District Court, United States vs. Microsoft, 87 F. Supp. 2d 30 (DDC 2000) regarding the §2 monopolization claim under the Sherman Act and what Google can expect during the litigation. See Paul M. Kaplan, “The Unfolding Microsoft Drama: Shattered Windows,” The Antitrust Counselor (May 15, 2001).
Maintaining monopoly power is a cornerstone of the DOJ’s action against Google, in general search services, the search advertising market, and the search text market. The Amended Complaint alleges that Google maintained its monopoly power and violated Section 2 of the Sherman Act by:
(1) Exclusive distribution agreements that lock in predefined default positions for search access points on browsers, mobile devices, computers, and other devices;
(2) Require pre-installation and prominent placement of Google applications;
(3) Link search endpoints to Google Play and Google APIs (application program interfaces);
(4) Impose restrictions that pushed queries to Google at the expense of search rivals;
(5) Exclusionary behavior that has captured a substantial share of the general search, search advertising and general search text advertising markets;
(6) Anti-competitive acts that have adverse effects on competition, advertisers and consumers;
(7) Maintaining and abusing its monopoly power over general search services, search advertising and search text advertising through anti-competitive and exclusionary distribution agreements that lock in predefined default positions for search access points on browsers, mobile devices, computers and other devices; and
(8) Impose other restrictions, such as revenue-sharing agreements on Android partners and Apple, that benefit Google at the expense of general search services, search advertising, and text-based advertising rivals on general searches.