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OAKLAND, Calif. / NEW YORK (Reuters) – Google's antitrust litigation against Alphabet (NASDAQ 🙂 Inc. appears to be strong, but it may face an uphill battle from a pro-business judiciary who may question whether a Free search engine loved by consumers has actually put it in a worse position, several legal experts said.
Google was accused in the long-awaited lawsuit filed Tuesday of harming competition in internet search and search advertising through distribution agreements and other restrictions that put the search tool at the center of every internet surfing.
To win, the US Department of Justice must demonstrate that Google gained or maintained monopoly power through abusive conduct or something beyond the scope of the competition.
Several legal experts said Google's alleged wrongdoing resembled the allegations the government cracked down on in the 1990s Microsoft Corp. (NASDAQ :). This landmark case was settled in 2002, and a consent decree forced the Windows operating system maker to stop taking revenge on computer manufacturers who used third-party software.
Rebecca Haw Allensworth, a professor at Vanderbilt Law School, said the Justice Department was wise to come up with credible and narrow arguments in its 59-page complaint.
"You are not jumping on the bandwagon, we have to restructure antitrust law for technology," she said. "You are sticking to the existing law."
Eleven US states joined the government's lawsuit, and New York attorney general Letitia James said her state and six others could soon file their own lawsuits.
Experts said the federal government is unlikely to pull back on the case, and it could press even harder if Democrat Joe Biden wins the presidency over incumbent Republican Donald Trump in the November 3 election.
Google is expected to argue that the government overestimated the company's power by overly defining its market.
However, some experts said that Google's ubiquity tends to hinge the case on whether its dominance comes from consumers who prefer rivals, or whether the Mountain View, California-based company distracts them from those competitors.
"We know Google has a huge share of that market," said John Lopatka, law professor at Pennsylvania State University. "The question is why."
Shubha Ghosh, a law professor at Syracuse University, said the government claims Google is blocking more consumer-friendly search engines, such as those that don't collect user data to personalize ads, are gaining popularity. But he said Google could simply argue that its search engine is effectively producing results that consumers want and is "not meant to be an exclusion".
Or, as Lopatka put it: "You could say we were an admired scrap company and we did a really good job, and that's why we became as dominant as we are."
The skyrocketing prices often show that customers have been hurt by anti-competitive behavior.
However, Google is offering its search services for free, adding to the Justice Department's challenges.
"The trend in jurisprudence in Supreme Court rulings involving dominant companies has been to give large corporations broad freedom in choosing the business strategies they prefer," said William Kovacic, law professor at George Washington University and former chairman of the Federal Trade Commission. "When you're a plaintiff, including a government plaintiff, that's hard to overcome – not impossible, just very difficult," he added.
Experts said that even if the Justice Department proved that Google was a monopoly and abused its monopoly power, a court could struggle to take steps to improve search competition.
"Building a search engine isn't easy," said Chris Sagers, a law professor at Cleveland State University. "It is extremely unlikely that any other company would usefully challenge Google."