5 Minutes with Digital Content Next’s Jason Kint

When it comes to monopoly-busting campaigns launched by the U.S. Department of Justice, there are some obvious landmarks in the 20th century — Standard Oil, AT&T and Microsoft. As it goes to trial this week, the government is aiming to add one more name to that list: Google. The DOJ alleges that the tech giant has illegally monopolized the ad tech marketplace. This trial comes hot on the heels of another DOJ antitrust case, which concluded in August with a verdict that found Google had monopolized the search-engine marketplace.

In the lead-up to this second trial, the DOJ has unsealed several documents that offer a glimpse into how Google talked about its own products. Trade publications have been trawling through these legal documents and published their revelations. The ad tech world is bracing for more as the trial gets underway in a federal courthouse in Alexandria, Virginia.

Ahead of the trial, reporter Chris Brooklier sat down with Jason Kint, the CEO of Digital Content Next, a trade group for digital content providers. An outspoken critic of Google and Facebook, Kint attended some of the pretrial hearings and offers his take on the meaning of this potentially landmark case.

The following interview has been edited for length and clarity.

If we zoom out, who do you think is harmed overall by Google’s alleged monopoly of the ad tech market? 

 The first part of the complaint in this case is that Google’s dominance over the search business and the search text ads business is where the market power starts. I appreciate that these are allegations for this case, but we now have a federal judge who decided that Google has monopoly power over search and over search text ads.   

That market power then allowed Google — and this is where the allegations start [for this trial] — to dominate three other areas of the supply chain. The companies that were harmed in those various phases would include publishers, ad tech companies — both on the buy and the sell sides — and possibly exchanges. And so that’s going to be the case that they’re going to have to make. And [the government has] got a wealth of evidence behind it.

You have a supply chain, and you’ve got a dominant company that sits on all sides of it, with clear conflicts of interest, that’s able to extract what has clearly been an enormous amount of revenue and profit out of it.   

Can you say just how much Google has impacted the journalism industry specifically? How have these online publishers been affected by the system that Google has created? 

 As you look across the entire industry, Google plays a role in which they clearly dominate the distribution of news and entertainment. [For instance,] 98% of the queries on a mobile device go through Google for general search. So that’s distribution. And then they clearly have a significant advantage in deciding the rules around data and how it’s able to be used. And then the monetization piece. For a good number of years, the rest of the industry was stagnant or shrinking while Google and Facebook collectively were taking almost all of the growth. And so, in round numbers, if the business was $100 billion and it grew by $20 billion, then Google and Facebook would take all of that $20 billion.  

That’s when the discussions and concern started, about seven or eight years ago. Ultimately there’s a zero-sum game. And that money was being taken by two major intermediaries.   

To hear more from Jason, listen to this episode of The Current Report:

You know, this is clearly being touted as a landmark antitrust case. Do you have any sense of how the outcome might reshape the power that these Big Tech firms have?   

It depends on ultimately where we get to with remedies. Even the search decision that came out a few weeks ago, that also will start a whole new set of hearings focused on the remedies. What Judge [Amit] Mehta decides to do there is going to be really important. If it’s as simple as saying that Google can’t buy the default spot on Safari and on iOS and on Samsung devices for search, then that will be a very unfortunate remedy because it probably won’t affect and solve for the issue that we’ve seen in the opinion.   

More likely he’ll lean toward something that involves structural separation. And so, you can imagine Google having to divest itself of Android or Chrome and ultimately start competing with itself in different ways and separate companies. That would be landmark. And that will take a few years to happen and ultimately will go to the Supreme Court. But this is a big deal.   

To what extent does the search trial connect to what might happen in this trial? What are the differences? 

There are connection points that I think aren’t readily understood. One is that the ad tech dominance all stems from the search dominance. And so that will be clear, I think, in the arguments. Number two, you’ve got to come back to the common issue of evidence that was purged and that’s run across all the trials. And then three, and this will come out in the remedies, this recognition that when you have 98% of the mobile queries, the data and the scale at which you’re able to operate, gives you an advantage in entrenchment in all future business. So, you can run experiments and large-scale experiments much more rapidly than anybody else that can inform and help you train your AI, for example. It can help you make decisions about how you want auctions to work in the advertising marketplace. You can do things that no one else can do to shape the market in the future.   

Judge Mehta understands that. It was striking that even Microsoft was sitting there testifying and saying that they didn’t have the scale and queries to remotely compete with Google.  

If we look from a historical perspective, do you have any thinking on how this trial compares to any other landmark antitrust cases, such as Microsoft in 2000? 

I’m not an expert in the history of antitrust, but I would point you to Jonathan Kanter, the assistant attorney general of the Department of Justice, who’s leading these cases. He said it would be “on the Mount Rushmore of antitrust cases,” along with AT&T and Microsoft and Standard Oil. That says something there.   

It’s also interesting that the search decision was very much tied to and relied upon the Microsoft decision, which also makes it a pretty clean decision. It means it will probably make it through appeals, too, because [it’s] the same court that made the decision on Microsoft.  

This ad tech trial, now starting in September, could push into next year until we have a decision. If I asked you to look ahead a year from now, what might happen?  

We’ll have a remedy on from the search decision likely before the end of this year. And I think the ad tech trial might inform legislation. You’ll probably hear more and more about something called the America Act, [a bipartisan bill] which Senators [Mike] Lee [R-U.T.] and [Amy] Klobuchar [D-M.N.] have introduced. It’s kind of a custom-designed piece of legislation that fits a lot of symptoms here.   

There’ll be more activity based on this for sure, both in Congress and in the courts. And, that decision from search will probably be at the appellate court being heard next year. And the one thing I should also I should flag, too, is the state attorneys general, led by Texas, brought the first ad tech case against Google back in December of 2020. And that’s scheduled to go to court for trial in the first quarter of 2025. It’s going to be an eventful year for ad tech.   

The Current is owned and operated by The Trade Desk Inc. An individual from The Trade Desk is among the 68 people included on the trial witness list.