# United States v. Google/Conclusions of Law/Section 2B

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    B. General Search Services is a Relevant Product Market.
The evidence at trial established that general search services is a relevant product market and alternative sources for query information, like SVPs and social media sites, are not adequate substitutes. The Brown Shoe practical indicia highlight the unique features of a GSE that make it distinct from other platforms. Of course, not every Brown Shoe factor is applicable because general search is a free product, so the court does not consider factors related to pricing. The court first addresses the relevant Brown Shoe factors and then responds to Google’s counterarguments.
       1. Peculiar Characteristics and Uses
“The ‘product’s peculiar characteristics’ refers to the general truth that substitutes in the market often have a strong physical and functional relationship.” Rothery Storage, 79 F.2d at 218 n.4.
No user could confuse a GSE with an SVP or a social media site. Unlike those other products, GSEs are a gateway to the World Wide Web. FOF ¶ 27. The web itself is often (but not always) the source of the answer to a query. (GSEs also secure query responses from structured data, such as knowledge graphs, current travel information, sports score feeds, etc.). FOF ¶¶ 41–45. Search on a GSE therefore is not constrained by subject matter, inventory, or query type. FOF ¶ 33. Google’s own query classification system reflects this reality. It tracks queries in more than two dozen different subject matter areas. FOF ¶ 34. Moreover, 80% of Google’s queries are noncommercial in nature. FOF ¶ 37. Also, navigational queries—that is, queries entered for the ​purpose of getting to another site on the web (e.g., “amazon,” “home depot,” “baltimore sun”)—are exclusive to GSEs. FOF ¶ 39. Nearly 12% of Google’s queries are navigational queries, and according to a 2018 Google weekly query report, its top five queries by query volume were all navigational queries. Id.
By contrast, SVPs are “walled gardens,” meaning their query responses are derived from structured data available only on that particular platform. FOF ¶ 144. Such data cannot typically be crawled by a GSE. FOF ¶¶ 45, 144. Because a user’s search is confined to the SVP’s structured data, users cannot use an SVP to navigate beyond the platform. FOF ¶ 144. For instance, Home Depot maintains a vast product catalog of goods that it sells both online and in stores. FOF ¶ 145. Users of Home Depot’s digital platforms can purchase those products from Home Depot but cannot navigate to a product-maker’s website to make a direct purchase. Id. In addition, as the name implies, SVPs are typically “specialized” to a particular subject matter (e.g., Amazon for shopping, Expedia for travel, Yelp for local businesses). FOF ¶¶ 141, 146. Although some SVPs do answer noncommercial queries, most notably Wikipedia, the vast majority do not. FOF ¶ 142. Thus, a user who wishes to acquire different categories of information could not do so from a single SVP and instead would have to take trips to multiple sites. FOF ¶¶ 33, 147. Even then, there are some types of queries—like long-tail queries—for which there may not be an SVP to deliver an answer. FOF ¶ 148.
The product delivered to consumers on a GSE differs significantly from what is produced by an SVP. When a user enters a query into Google or Bing, the result is a search engine results page, or SERP, which contains organic links that enable the user to navigate to other websites. FOF ¶¶ 41, 43. For commercial queries, the Google SERP will include advertisements, which similarly link to other webpages. FOF ¶ 172. And, in some cases, the SERP will contain vertical ​offerings, which are built on structured data typically sourced from a third-party on topics such as shopping, flights, and hotels. FOF ¶¶ 42, 45.
On the other hand, SVPs respond to queries with a results page that reflects the data possessed or controlled by the SVP. Although some SVPs contain links that direct a user to a site external to the SVP’s platform (such as an online travel aggregator like Kayak), most do not. FOF ¶ 144. Similarly, any advertisements that appear on an SVP’s results page link to products or services within its own platform. FOF ¶ 194. Purchases are typically completed within the SVP itself. Id. As a result of these distinct features, the business models of GSEs and SVPs are fundamentally different. A GSE seeks to attract users on the promise that it will accurately and efficiently answer any query and monetize the commercial ones through advertising. An SVP must attract a user to its site for a commercial purpose to complete a transaction.
Social media sites differ from GSEs in many of the same ways as SVPs. They too are “walled gardens,” primarily driven by user-generated content such as self-uploaded videos on TikTok or photos on Instagram. FOF ¶ 162. Searches on social media only yield results from profiles on the platform and do not display web links to external sites (although social media users can navigate to external web content, such as through a link posted by a user or through an advertisement). Id. There was little evidence presented on the efficacy of social media search. The court thus has no reason to believe that search functionality on social media sites is comparable to that offered by GSEs or even SVPs.
Plaintiffs have sought to distinguish GSEs from other platforms as a “one-stop shop” for all manner of queries, and Google challenges that characterization. U.S. Plaintiffs’ expert, Dr. Michael Whinston, opined that his analysis of Windows query data demonstrated that 77% of users begin their search journeys on GSEs. FOF ¶ 35. Plaintiff States’ expert, Dr. Jonathan Baker, ​conducted an analysis of user search behavior, which showed that nearly 65% of user sessions involved searching in more than one vertical. FOF ¶ 34. Dr. Baker claimed that this analysis proved that general search offers “one-stop shop” convenience. Id. Google’s expert, Dr. Mark Israel, took a contrary position. He opined that “one-stop shopping” is at odds with how people actually search. Google’s sessions data showed that during a “visit” to Google—defined as any series of user activity separated by five minutes of inactivity—the median number of queries is one and that the median length of a visit is 20 seconds. That data, he said, is inconsistent with the notion of “one-stop shopping.” Tr. at 8418:1–8419:3 (Israel) (discussing DXD29 at 25).
The court does not find the “one-stop shop” analogy to be apt, but that is no obstacle to recognizing a general search services market. The notion of the “one-stop shop” was useful in a case like Sysco, where the ability of a purchaser to obtain all of its requirements in one place was more efficient and less costly than having to place orders with multiple specialty providers. See 113 F. Supp. 3d at 16 (“Customers value the breadth of product offerings and the opportunity to aggregate a substantial portion of their purchases with one distributor, allowing them to save costs.”). That is not exactly how search works. Users do not necessarily do all their querying at once. Users seek information on different subjects over time. By that thinking, Dr. Israel is right that search is not a “one-stop shop.”
But that framing is too narrow. Users always can, and do, return to a GSE to fulfill a broad array of informational needs. And they can do so at little or no cost. A user can search for a tennis racket on Google, then purchase the racket on Walmart.com, and then return to Google to find out the dates for the next U.S. Open with little to no friction (and certainly no actual expense). This may not be “one-stop shopping” in a traditional sense, but the GSE is performing a unique function: It is both a reservoir of information and a conduit to other sources on the web. And it ​serves that purpose over and over again. No SVP or social media platform can meet user needs in the same way. They therefore are not functionally interchangeable with GSEs.
       2. Industry or Public Recognition
Industry or public recognition “matters because [courts] assume that economic actors usually have accurate perceptions of economic realities.” Rothery Storage, 792 F.2d at 218 n.4. Plaintiffs have presented significant evidence that market participants consider GSEs to be a distinct product with no adequate substitutes.
First, browser developers recognize that GSEs are a distinct product. Browsers contain a default search access point, and only GSEs occupy that position. To install an SVP or a social media site as the default would restrict that key access point to a particular vertical or subset of verticals, creating a poor user experience. FOF ¶¶ 146–147, 149. To that end, browsers allow users to switch the search default only to a GSE and not to an SVP or a social media platform. The available alternative defaults in Chrome, Edge, Firefox, and Safari all are GSEs. FOF ¶ 61. Mozilla recognizes that certain SVPs are frequented by its users, and so it has created a unique feature in the desktop version of Firefox that allows users to perform individual searches with SVPs like Amazon or Wikipedia, using the Firefox toolbar. FOF ¶ 60. But even Firefox does not allow a user to change the default search engine to an SVP. FOF ¶ 61.
Second, Android OEMs and mobile carriers also consider GSEs to be a distinct product. By signing the MADA, every Android OEM has installed a GSE—Google—as its default search access point (whether in the Google Search Widget or Chrome). FOF ¶¶ 59, 350, 363. No Android phone comes with an SVP or a social media platform installed at the default search access point. Not surprisingly then, Google’s various RSAs with OEMs and carriers define the term “Alternative Search Service” to include platforms similar to Google. FOF ¶¶ 385–390. Certain RSAs explicitly ​exclude SVPs from the definition. Id. Thus, the RSAs prohibit partners from preloading Bing, Yahoo, and DDG but permit preloading of Amazon or Instagram.
Third, advertisers consider GSEs to be differentiated from SVPs and social media platforms. The court will have more to say about this in connection with the advertiser-side markets, see infra Section III.A.1, but for present purposes it suffices to observe that advertisers do not generally view SVPs and social media to be reasonable substitutes for GSEs.
Fourth, Google itself recognizes general search services as a distinct product and separate market. As already noted, Google is the default GSE on Chrome. (Microsoft does the same with Edge, installing Bing as the preset default.) When Google has evaluated its quality against other platforms, it has done so primarily against other GSEs. FOF ¶¶ 136–138. For instance, Google has assessed its SERP quality and latency alongside Bing and has compared its privacy offerings to DDG. Id. While Google has conducted some evaluations of SVP and social media users, see Google’s Resp. Proposed Findings of Fact, ECF No. 912, ¶¶ 13, 15 [hereinafter GRFOF], its employees have testified that it would be difficult or unhelpful to do side-by-side comparisons with SVPs or social media, because of their differentiated product experiences, FOF ¶ 139.
In addition, internal Google documents show that Google, as early as 2009, tracked its “market share” relative only to other GSEs. See United States v. H&R Block, Inc., 833 F. Supp. 2d 36, 52 (D.D.C. 2011) (“When determining the relevant product market, courts often pay close attention to the defendants’ ordinary course of business documents.”) (citation omitted). Google has since suspended that practice. The record does not reveal precisely why.
Finally, evidence suggests that the public also views GSEs as a distinct product. Dr. Israel testified that there is “relatively limited [user] overlap between the general search engines.” Tr. at ​8728:23-24 (Israel). This suggests that users see Google and other GSEs as substitutes, such that using Google obviates a need to use another GSE.
       3. Unique Production Facilities
“If a product requires unique production facilities, and the producer raises the price above the competitive level, the ability of other producers to shift resources to make the product would be limited, and the market definition should be likewise limited.” Rothery Storage, 792 F.2d at 218 n.4. For a zero-cost product like a GSE, this factor is of limited application unless slightly modified to use quality as the relevant variable, instead of price.
Imagine if Google’s search quality substantially degraded, whether purposely or through neglect. Would SVPs or social media platforms be able to shift resources to put out a product that resembles a GSE and thereby capture a significant number of dissatisfied Google users? The answer obviously is no. Absent extraordinary cost and expense, neither Amazon nor Meta could become a source for noncommercial or navigational queries. See infra Section II.C.3.a. Wikipedia likewise could not become a source for commercial or navigational ones. And even if an SVP or social media firm were willing to make the required intense resource commitments, adapting its platform to perform general search functions would take a long time to materialize. Cf. Microsoft, 253 F.3d at 53–54 (stating that substitute products are those that can “constrain pricing in the reasonably foreseeable future, and only products that can enter the market in a relatively short time can perform this function”).
Accordingly, the relevant Brown Shoe factors warrant recognition of a general search services market.
       4. Google’s Proposed Query Product Market
Google urges that the relevant user-side product is query responses, not general search services. See GTB at 8. That contention rests largely on the opinions of its expert, Dr. Israel. He observes that whenever a person seeks information online, they make a choice about where to search, whether on a GSE, an SVP, a website, or a social media platform. See, e.g., Tr. at 8398:117, 8437:1-23 (Israel). These various sources, although differentiated from GSEs, compete with GSEs for queries and thus act as competitive constraints. GTB at 9. Plaintiffs’ user-side market for GSEs, Dr. Israel says, artificially cuts out these market actors, many of whom are Google’s primary competitors for users. Id. at 10–12. Those include shopping and local SVPs, like Amazon and Yelp, which fiercely compete with Google to attract users. Tr. at 8394:25–8395:9 (Israel).
In one sense, Dr. Israel is not wrong. Google does perceive and respond to competitive pressure from other platforms, particularly SVPs. FOF ¶ 140. After all, Google developed verticals like shopping, flights, and hotels in part to provide users with topic-specific results much like SVPs. See GTB at 13; FOF ¶ 45. Still, the court is unpersuaded by Dr. Israel’s query-byquery approach to define the relevant market for several reasons.
First, “the relevant market must include all products ‘reasonably interchangeable by consumers for the same purposes.’” Microsoft, 253 F.3d at 52 (quoting du Pont, 351 U.S. at 395) (emphasis added); see also id. (affirming the district court’s exclusion of “information appliances” from the relevant market “because information appliances fall far short of performing all of the functions of a PC”) (emphasis added). No one disputes that an SVP can serve the same purpose as a GSE for an individual query on a particular subject matter. A user can, for example, use either Google or OpenTable to find a nearby Japanese restaurant, or turn to Google or Amazon to shop for a blender. But no SVP can fulfill a user’s varied needs in the same manner as a GSE. Few ​SVPs can provide answers to noncommercial queries or take a user to a desired location on the web through a navigational query. And no SVP can answer long-tail queries like a GSE. Thus, an SVP may be reasonably interchangeable with a GSE for a discrete purpose but for not the “same purposes.”
Second, “the mere fact that a firm may be termed a competitor in the overall marketplace does not necessarily require that it be included in the relevant product market for antitrust purposes.” FTC v. Staples, Inc., 970 F. Supp. 1066, 1075 (D.D.C. 1997). That is the lesson learned from the D.C. Circuit’s decision in Whole Foods and the district court’s decision in Staples. In Whole Foods, the fact that consumers “cross-shopped” between premium and organic supermarkets and ordinary supermarkets did not require the latter’s inclusion in the relevant market. 548 F.3d at 1040 (Brown, J.). Likewise, in Staples, the court held that office supply superstores constituted a relevant product market even though consumers also purchased such products through other retail outlets. 970 F. Supp. at 1079. A similar analysis applies here. The fact that GSEs may compete for travel queries against Booking.com, shopping queries against Amazon, and local queries against Yelp does not mean that firms that specialize in certain verticals belong in the same product market as GSEs. The fact that users “cross-query” does not require all online query sources be lumped together in the same market.
To challenge this conclusion, Google points to a 2020 Bank of America study, which asked participants where they begin online shopping searches: 58% responded Amazon, only 25% chose Google. FOF ¶ 151. “But the fact that [two firms] ‘are direct competitors in some submarkets . . . is not the end of the inquiry[.]’” Whole Foods, 548 F.3d at 1040 (Brown, J.) (quoting United States v. Conn. Nat. Bank, 418 U.S. 656, 664 n.3 (1974)). The Bank of America study merely demonstrates that Google and Amazon compete for shopping queries, which comprise a minority ​of Google’s overall queries by type. FOF ¶ 151; FOF ¶ 38 (80% of queries on Google are noncommercial in nature); see also 548 F.3d at 1048 (Tatel, J., concurring) (“That Whole Foods and Wild Oats have attracted many customers away from conventional grocery stores by offering extensive selections of natural and organic products thus tells us nothing about whether [they] should be treated as operating in the same market as conventional grocery stores.”). That Google and Amazon have some overlapping users does not, without more, mean they belong in the same product market.
Third, there is nothing improper about aggregating varied query types into a single relevant market. According to Dr. Israel, the “clustering” of different verticals into a single market is appropriate only when the competitive conditions are similar, that is, when information providers are competing to resolve similar user questions, such as those related to travel. See Tr. at 8400:623 (Israel); ProMedica Health Sys., Inc. v. FTC, 749 F.3d 559, 565 (6th Cir. 2014) (“If the [competitive] conditions are similar for a range of services, then the antitrust analysis should be similar for each of them.”). He acknowledges that there may be submarkets for travel or shopping or local queries, but he rejects an overarching market that collects those submarkets under the umbrella of general search. See Tr. at 8399:7–8400:23 (Israel).
But Dr. Israel’s “cluster” market principle does not apply here, because a GSE is better thought of as a “bundle” of offerings. Cf. Whole Foods, 548 F.3d at 1039 (Brown, J.) (recognizing a “cluster” market based on “a core group of particularly dedicated, distinct customers, paying distinct prices”). “Unlike cluster markets, which aggregate a number of individual relevant markets, a bundle market is the collection of products or services that comprise the relevant market where customers value suppliers offering a package of goods and benefit from the ‘one-stop shopping’ experience.” Kevin Hahm & Loren K. Smith, Clarifying Bundle Markets and ​Distinguishing Them from Cluster Markets, 20 Antitrust Source 1, 3 (2021). As already discussed, GSEs are not a “one-stop shop” in the same sense as, say, an office-supply superstore (Staples) or a broadline distributor (Sysco). But they are a distinct product because only a GSE can answer any query—including, importantly, noncommercial and navigational queries. See Grinnell, 384 U.S. at 572–74 (stating that there is “no barrier to combining in a single market a number of different products or services where that combination reflects commercial realities” and the market concerns “a single basic service” that is “unique,” notwithstanding the existence of more specialized competitors). No SVP can match the breadth and comprehensiveness of a GSE. Thus, even if viewed as a “bundle” of search offerings, GSEs comprise a relevant product market.
Finally, the record shows that GSEs and SVPs are complementary goods, undermining Google’s contention that users view the two as true substitutes. Sysco, 113 F. Supp. 3d at 31 (observing that it “would be improper to group complementary goods into the same relevant market just because they occasionally substitute for one another”) (quoting Areeda & Hovenkamp, Fundamentals of Antitrust Law ¶ 565b (4th ed. 2017)). Dr. Baker demonstrated that SVPs receive between 33% to 88% of their traffic, depending on the subject matter area, through a click on a GSE’s SERP, whether through an organic link or an advertisement. FOF ¶ 155. Not surprisingly then, SVPs are Google’s top advertisers. FOF ¶ 156. This data shows that users are not uniformly bypassing Google and going directly to SVPs, thus confirming that SVPs do not cannibalize searches on Google.
As evidence that SVPs pose a competitive constraint, Dr. Israel analyzed queries on Google, Amazon, and Bing, and found that for Google’s top non-navigational shopping queries, Amazon had a significant query volume (3.7 million, as compared to Google’s 5.1 million). FOF ¶ 154. But Dr. Israel’s query volume analysis only reveals that users enter a large number of ​queries on both Google and Amazon. Unlike most goods, queries are free, so users face no cost constraint when using more than one site. Thus, the fact that large numbers of consumers use both Google and Amazon tells the court little about whether Amazon is “reasonably interchangeable” with Google. (The same is true for Dr. Israel’s analysis of queries on Yelp and the Auto, Flights, and Shopping verticals.)
Google’s own studies confirm that GSEs and SVPs are complementary goods, not substitutes. Google’s 2019 analysis, entitled “Project Charlotte,” showed that users who engaged with SVPs were more likely to enter queries on Google. FOF ¶ 157. The same is true on mobile applications: A 2020 Google study found a positive correlation between users’ activity on SVP applications and query volume on Google, such that a user’s adoption of Amazon, eBay, Walmart, Pinterest, Spotify, or Twitter was associated with increased revenues and queries on Google mobile. Id. Therefore, although SVPs can and do compete with GSEs for certain types of queries, the evidence does not show that such competition has led to less frequent use of GSEs. Consumers use GSEs and SVPs in a complementary manner to meet their online needs. See Microsoft, 253 F.3d at 52 (products that function “only as a supplement to” the proposed product market are not within the market).
With respect to social media platforms, there is little evidence that they actually compete with GSEs for search queries. Google presented an internal study suggesting that 63% of daily TikTok users aged 18–24 reported using the platform to perform searches within the last week, FOF ¶¶ 140, 163–164 (citing DX241), but that percentage alone tells the court little about actual substitution between GSEs and TikTok. Importantly, the study offers no detail on the types of searches performed or the quality of the results. There also is some evidence—albeit dated—that Facebook use correlates to more searching on Google. FOF ¶ 165. Thus, although it may be that ​there is some growth in search on social media platforms, it is not enough to comprise the “significant substitution” necessary to be grouped into the same product market.
The court therefore rejects Google’s proposed query-response market and instead agrees with Plaintiffs that there is a relevant market for general search services.