Welcome to The Monopoly Report! Today, Ari Paparo examines what Judge Brinkema’s remedy means for Google, publishers, exchanges, and the cases still to come.

Since writing Yield, my book about ad tech, Google, and the resultant antitrust trial, I’ve been anxiously scanning Twitter every day waiting for the final remedy from Judge Brinkema. Last week it finally dropped, and – of course – I wasn’t online that day. With a little time for the news to marinate, I’ll now do my best to summarize the situation and likely next steps.

As a side note, for those keeping score, I put odds on these outcomes last fall and they were spot on.

If you’re a regular reader you probably already know the facts, but to boil it all down:

The hot takes have all been of two flavors:

I don’t agree with these takes for two reasons. First, I believe the behavioral remedies are very significant and are probably the least disruptive of the potential options for the market. Did Google get away with it? Maybe. But in the near future the market will act in a mostly competitive fashion, and the fruits of their past misconduct will be subject to lots of fines, civil suits, legal fees, and more.

Second, we shouldn’t assume that the DOJ’s proposed remedy of a break-up was necessarily the most just or logical outcome, and reflexively should not assume that when that remedy was denied justice was also denied.

There were a lot of problems with the DOJ’s remedy proposal. As an observer of the remedy trial, I found myself doubting the feasibility or logic of their arguments, and Google’s defense did a great job of poking holes. The Trump DOJ proposed a structural remedy that was phased and complex, perhaps in an effort to appear more business-friendly as a contrast to the anti-tech Biden administration. This nuanced approach gave Google a wide range of targets for casting doubt. When the DOJ said AdX should be spun but GAM should wait three years, Google could make the argument that the two products couldn’t be separated. When the DOJ said the “final auction logic” should be open sourced, Google could say that was vague, difficult, and impossible. I wrote about the complexity of the AdX spin-out in my coverage of day 7 of the remedies trial.

I can also just be cynical and point out that when your presiding judge is 82 years old, and is possibly seeing this trial as the capstone to her distinguished career, maybe it's not wise to propose remedies that will play out over a decade.

Rather than reflexively pronouncing the lack of structural remedies as a defeat for competition and a win for Big Tech, let’s look at what is about to change in the market because of this case. As a reminder, Google was found to be a monopolist in the ad tech market for “open web display ads” and was held as abusive in this market in two ways – the tie between the AdX exchange and the GAM ad server, and the tie between Google Ads and AdX. So how will the behavioral remedies try to solve these problems?

AdX currently bids directly into GAM and does not divulge its real-time price to the publishers or their header bidding implementations. This prevents publishers from applying yield management to the AdX bids. Before Google implemented its so-called “unified auction,” this was a huge advantage for AdX as it gave them a “last look” to bid one cent higher than all other bidders. From roughly 2018, the last look advantage was removed and the main impact was to prevent publishers from using other non-GAM ad servers. Bidding into Prebid solves this problem and should allow publishers to move off of GAM and still retain AdX demand, if they choose.

Google witnesses on the stand agreed that this is possible, and something they would be willing to do within 12 months. So this remedy is a lock. However, some details are really important here:

The demand from Google Ads currently bids into exchanges other than AdX about 5-10% of the time. The remedy will force Ads to bid in a non-discriminatory manner across multiple exchanges. Since Google is the single largest source of demand in the open web category, this remedy should greatly benefit independent exchanges, which should then spur competition at the publisher level, which should benefit competition either through lower take rates or higher media prices.

The devil is in the details on this, and there are a lot of details. As the AIs say, the phrase "non-discriminatory" is load-bearing. The implementation of this bidding will have to account for latency, pricing, inventory quality, privacy, and a host of other parameters that go into the bidding decisions. Plus, there’s the issue of pricing, where currently the Ads -> AdX route takes a total of 28%, whereas the Ads -> external route takes 28% before the third-party exchange takes its fee.

Unified Pricing Rules (UPR) is the “feature” that prohibits publishers using GAM from offering different pricing to different exchanges. This has already been rolled back in Europe and will now be killed in the U.S. This is unambiguously good for publishers and should not be controversial.

The DOJ proposed a fund to be created as a percentage of AdX gross revenue with the purpose of defraying publisher costs related to switching ad servers. I’m very unclear on whether this will be part of the final judgment or not, and it was barely debated during the trial.

Like Ted Lasso, you may have thought this whole thing was brought to a satisfying conclusion. But actually, there’s a lot more. In no particular order, here’s the uncertainty we’re heading into.

Like Slow Horses, the political mechanizations of the EU are causing trouble for everyone involved. The EU fined Google €2.95 billion last fall and gave it 60 days to respond to the demand for a breakup. They then started getting feedback from market participants and issued a vague statement last December. What’s German for “kicking the can”?

Despite really, really wanting to force the spinout of AdX and GAM, the EU finds itself in conflict with the U.S. courts and potentially inviting the trade wrath of the Trump administration if they try to move forward. It will be interesting to see them wiggle out of this.

Like Silo, the multi-party state AG case against Google is going on forever, and no one knows what’s happening. The Texas trial was postponed from last summer while waiting for the federal result, and now will likely get moving again. My take is that, like the recent Meta settlement, the primary purpose of this effort is to close state budget shortfalls, and a very large dollar amount might make this go away.

Finally, like The Morning Show, there is a lot of money going into the civil cases, but no one is really watching. I used to keep track of all the civil cases but there are so many it can be difficult. The key thing to know is that the monetary damages may be quite significant, and the facts are being accepted from Judge Brinkema’s rulings. This means that it is Google’s interest to appeal and fight the original finding of their monopoly as high as the courts will allow, lest they get on the wrong side of their own “tobacco settlement.”

This isn’t the last you’ve heard from me. Stay tuned as events unfold.

A version of this article was originally published on Marketecture.

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