The Microsoft Litigation's Lessons for United States v. Google

70 Pages Posted: 1 Mar 2023 Last revised: 18 Mar 2023

See all articles by John E. Lopatka

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law

William H. Page

University of Florida Levin College of Law

Date Written: February 20, 2023

Abstract

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising— the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its status as the default search engine at all major search access points. The complaint echoes the DOJ’s claims two decades ago that Microsoft illegally maintained its monopoly in personal computer operating systems by forming exclusionary contracts with distributors of web browsers, and by tying its Internet Explorer browser to Windows. The gist of the case was that Microsoft had used exclusionary tactics to thwart the competitive threat Netscape’s Navigator browser and Sun Microsystems’ Java programming technologies—both forms of “middleware”—posed to the Windows monopoly. In this Article, we argue that the treatment of market definition, exclusionary contracting, causation, and remedies in the D.C. Circuit’s Microsoft decision has important lessons for the Google litigation.

Keywords: antitrust, monopolization, exclusionary practices, market power, market definition, high technology

JEL Classification: K21, L40, L41

Suggested Citation

Lopatka, John E. and Page, William Hepburn, The Microsoft Litigation's Lessons for United States v. Google (February 20, 2023). 77 U. Mia. L. Rev. 319 (2023), Penn State Law Research Paper No. 3-2023, Available at SSRN: https://ssrn.com/abstract=4369759

John E. Lopatka

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

William Hepburn Page (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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