Publishers just can’t win. A federal judge has tossed an antitrust lawsuit filed by two Arkansas news providers against Google, stating that the search engine does not really enjoy a digital
news monopoly and that some of the claims are past the statute of limitations.
In a 41-page opinion responding to Google’s motion to dismiss,
U.S. District Judge Amit P. Mehta noted that the defendants “argue, in the main, that Plaintiffs (1) lack antitrust standing to assert claims related to the general search
services market, (2) fail to plead a relevant market or monopoly power in the online news market, (3) fail to plead a cognizable tying arrangement, and (4) are time-barred from bringing their Clayton
Act claim.”
The case was filed in 2023 by Helena (Arkansas) World Chronicle, LLC and Emmerich Newspapers, Inc.
“Plaintiffs bring this
action on behalf of themselves and others similarly situated against Google and its parent company Defendant Alphabet, Inc. alleging violations of the Sherman Act and Clayton Act in
the general search services and online news markets,” Mehta wrote. “Plaintiffs assert that Google has leveraged its power in the general search services market, which it
achieved through a veritable “monopoly broth” of anticompetitive acts, to monopolize or attempt to monopolize the online news market, resulting in Google functionally becoming
‘America’s largest news publisher.’”
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The judge did not even seem to dispute that Google has a monopoly of sorts. He noted,
“The acquisitions of Android, YouTube, and DeepMind may very well have been anticompetitive. But Plaintiffs are 10 to 20 years too late; those claims are now stale.”
And, as is usual, the judge concluded, “Because this matter comes before the court on a motion to dismiss, the court takes Plaintiffs’ well-pleaded factual allegations as
true.”
Really?
Mehta continues, “Plaintiffs contend that, because of Google’s monopoly in general search services, publishers of
online news content “have only one meaningful provider for the largest source of external traffic: Google. (showing that, after Google.com, the two next highest search engines from which
Plaintiff Emmerich Newspapers received external search traffic were DuckDuckGo.com at 0.17% and Brave.com at 0.15%). Plaintiffs argue that “search traffic referrals,” or the
directing of search traffic, is a monopoly product."
But he added, “It may be, as Plaintiffs claim, that the acquisitions of Android, YouTube, and DeepMind facilitated
the integration of GenAI into Google’s SERPs, which ultimately entrenched Google’s ‘walled garden’ search engine by enabling it to publish to users exponentially more of the
news content Google misappropriates from news Publishers, without users ever needing to leave Google’s SERP. But this has no effect on the limitations period.”
Moreover, "the harms Plaintiffs themselves allegedly suffer are not within the general search services market at all. By Plaintiffs’ own description, the general
search services market consists of “general search engines, which are ‘one-stop shops’ consumers can use to search the internet for answers to a wide range of queries," Mehta writes.
By contrast, Plaintiffs are publishers of “’ext-based digital news products that publish such content online’" who have allegedly “suffered lost profits from diverted
customers, higher average costs of production, and lost licensing fees” specifically as publishers of online news, not as general search engines.
The order is appealable. The
case is on file with the U.S. District Court for the District of Columbia.