Postmodern “trust busters” resent that most people “Google it” when looking for something online. And that Google’s free search tools are supported by advertisers willing to pay for access to users.
Not to worry. The neo-Brandeisian savants, namely Liz Warren acolyte and Chairwoman Lina Khan of the Federal Trade Commission and Assistant Attorney General for Antitrust Jonathan Kanter at the Justice Department, know what’s best for those poor, exploited folks who keep selecting Google for their online searches.
Among many federal antitrust lawsuits, DOJ sued Google, alleging monopolization. DOJ won in court. The judge said, “Google is a monopolist, and it has acted as one to maintain its monopoly.” The company has paid digital device makers and web browsers to make Google its featured search engine.
Meanwhile, in the free market, competitors in Internet search are gaining ground on Google in the search advertising market. Currently, Google holds 90 percent of global online search and 50.5 percent of the U.S. market. The firm’s lead has slid about 10 percentage points in U.S. market share since 2018. Amazon, Microsoft, Apple and Chinese spy tool TikTok count among the competition eating into Google’s erstwhile search-ad “monopoly.”
In other words, the government is expending massive amounts of taxpayer money on litigation (losing most of their cases because of outlandish legal theories that lack an empirical basis grounded in economics and consumers' welfare) — not to mention weaponizing antitrust laws, pursuing extreme remedies and erecting huge regulatory hurdles against even routine mergers and acquisitions — to force what the free market is accomplishing on its own in the search business.
To be clear, I’m no fan of Big Tech. But not because the firms are large corporations. And I do admire their technological innovation.
But I detest their left-wing, woke “values” they continually force-feed down America’s throat. I despise their heavy-handed viewpoint discrimination, acting like a journalistic enterprise in controlling content while hiding behind Section 230’s treating them as a disinterested, evenhanded marketplace of ideas (instead of the ideological censors they are).
And then there’s their antipatent behavior. Big Tech firms, including Google, are among the most frequent litigants at the Patent Trial and Appeal Board (AKA patent death panels) and some of the most devoted practitioners of predatory patent infringement.
There are several pro-IP bills that would counter the Infringers’ Lobby’s ability to game the patent system they have weakened over the past few decades. This legislation is the PREVAIL Act (S. 2220/H.R. 4370), the Patent Eligibility Restoration Act (S. 2140/H.R. 9474), the RESTORE Patent Rights Act (S. 4840/H.R. 9221) and the Restoring America’s Leadership in Innovation Act (H.R. 8134).
You’d expect Big Tech companies — at least those like Google, whose patented search algorithm secured the firm’s founders the patent exclusivity to commercialize a novel invention discovered at and the technology licensed out of Stanford — to respect patent rights and the integrity of intellectual property.
However, Big Tech companies and Chinese national tech champions exhibit disrespect for private property rights and short-circuit the exclusivity of reliable, enforceable patent terms that would enable innovators to emerge as competitors with a better mousetrap. Big Tech entities assault patents and IP in order to chop-block would-be small competitors and keep them from leapfrogging the existing competitive environment. Otherwise, the technological innovations of IP-centered startups — like Google once upon a time — could use patents to attract investors, create new products and markets, and spark dynamic competition.
University of Southern California law professor Jonathan Barnett explains how reliable IP benefits innovative entrants and poses a threat to incumbent large firms. “[W]eak-IP environments are hospitable for large, integrated firms that maintain internal markets for financing and conducting R&D and then embed the resulting intellectual output in goods and services for the end-user market. By contrast, strong-IP environments enable entry by smaller firms that specialize in R&D and monetize the resulting intellectual outputs through external relationships with third parties. This organizational distortion matters because larger firms tend to excel in incremental and process-related innovation that refines existing technologies while smaller firms tend to excel in product innovation that challenges existing technologies.”
This returns us to the detriments that government actions based on fringe antitrust theories (i.e., a heavy regulatory hand big on sticks and slim on carrots) cause. Strong, ill-founded antitrust policy serves to weaken intellectual property and reduce IP rights, whose natural outcomes in an unfettered marketplace would be dynamic competition, innovative advancement, and wealth and job creation.
On the antitrust side, an important part of the solution is the One Agency Act (H.R. 7737). This legislation would place all antitrust enforcement authority and resources in the Department of Justice. The FTC, the antitrust agency more biased against IP, would yield to DOJ in these matters and focus its attention on such things as consumer protection. These changes would bring greater efficiency, fairness and accountability to antitrust. As a cabinet department, DOJ is more accountable to Congress and speaks for the United States.
The U.S. House Judiciary Committee passed the One Agency Act last spring. Hopefully, the House will approve H.R. 7737 this year.
In short, we need a reset: Strengthen the patent system and private IP rights, curb antitrust’s excesses, and free up the free market by reducing the regulatory state that’s led to a strong-antitrust, weak-patents regime.
As it now stands, America's economic freedom is constrained, property rights are diminished and government systematically commits regulatory takings of private property as a matter of Biden-Harris policy. And Big Tech is both the U.S. government’s target and its pawn.
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