Applying the pornography standard to Google and antitrust

By Laurie Bennett

September 22, 2011 at 7:37am

Google lawyer Susan Creighton clerked for Sandra Day O’Connor, but she echoed another Supreme Court justice Wednesday during her appearance before a Senate subcommittee.

Potter Stewart knew pornography when he saw it, and Creighton knows antitrust.

As a partner at Wilson Sonsini Goodrich and Rosati, she represented Netscape in its antitrust suit against Microsoft.

She was also a regulator, heading the FTC’s Bureau of Competition from 2003 to 2005 and then returning to Wilson Sonsini.

In her prepared testimony to the subcommittee, which is investigating whether Google is abusing its online dominance, Creighton said she worked with the FTC during a period of stepped-up enforcement.

“Just as important as the cases we brought, however, were the cases we did not bring,” she said. “Indeed, I learned firsthand that competitors often seek to use federal regulators to impose costs on their rivals and undermine competition.”

Google, she argued, has in fact increased competition and improved consumer welfare.

Here, in a nutshell, is the reason for the revolving door between government and business: Few have more credibility than former regulators arguing against regulation.

Yet a little more research (through Google searches, of course) would serve the subcommittee well.

Before she was a government enforcer, Creighton co-wrote an incisive, 222-page argument for Netscape. The white paper was never publicly released, and its distribution was deliberately limited to a small audience, but it was later cited by journalists covering the case.

Here’s an excerpt cited by Wired: “The monopolist is aided by the fact that circumstances are ideal for its predatory strategy: The monopolist has vast resources, while its rival has very modest ones; barriers to entry are high; and, once the rival is out of the way, the monopolist’s road ahead looks clear.”

Sound familiar?

On Wednesday, Creighton urged the senators to go beyond general search in their definition of the market. Amazon is a search engine for retail, she said. Twitter and Facebook are prime platforms for local advertising.

The same points might be used to argue the opposite case - that Google has launched new products whenever potential threats emerge from outside the search sector. It sells digital books on the Google ebookstore and it just opened its answer to social networks, Google Plus, to the general public.

As Creighton wrote in the Netscape case: “There is no reason to believe that Microsoft’s monopoly power will be confined to a single industry.”

Much as she was frustrated by the fact that more wasn’t made of the white paper then, Creighton is probably glad now. A simple search and replace - substituting Google for Microsoft - would undoubtedly provide some entertaining passages.

WikiLeaks, you there?

(Editor’s note: Yes, we do hope that the mention of pornography in the headline and the story, while pertinent, will boost us in Google search results. Having to pander to a company’s dominance while criticizing its practices may well be further proof that the company holds too much power.)

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  • #1.   Terry Bequette 09.22.2011

    Frustrated with trying to get rid of iGoogle last night, I made Bing my home page. Bing promotes most popular searches on its page. With FaceBook changes being a topic now, I clicked on that search. The first result was a MSN story with a negative (to FaceBook) slant. Doesn’t excuse Google, but Microsoft is certainly still playing dirty too.

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