Courthouse shock: Google 0, Publishing 1
Is this an AI headline, or reality? Publishers suing Google for ad market ripoffs have been handed a win after a US federal court ruling looked to clear the way straight to damages and remedies.
Sometimes, being clever can backfire.
Last year, during the main phase of the Google Ad Tech Monopoly Trial, and no doubt wary of how a non-expert jury of real people might interpret the company’s conduct in the advertising market, Google manoeuvred to ensure proceedings would be heard and judged by just one person: Northern Virginia under US District Court Judge Leonie Brinkema.
What looked smart back in 2024, and was facilitated for the paltry sum of $2.3m, now looks very unsmart. In fact, as far as backfires go, this is a Chernobyl graphite-tipped control-rod level backfire.
How so? This week, during a separate New York trial brought by major publishers against Google for ad market abuse, its presiding federal judge decreed that the findings and conclusions in the Brinkema adtech antitrust trial - that Google did indeed run an illegal monopoly in the ad industry - stand as established fact.
Which basically implies, there’s no trial to be had - we go straight to damages and remedies.
With great irony, experts pointed out that by side-stepping a jury trial and pinning their hopes on Brinkema’s opinion, a key legal lever which could have been relied upon to dispute the publisher suit this week does not exist.
If a jury had sat in judgement at the Brinkema adtech trial, there would have been wiggle room in the meaning of the jury’s finding. But, as US District Court Judge P. Kevin Castel found this week, “Judge Brinkema’s findings of fact and conclusions of law are precise and concise.”
Delicious justice isn’t it?
Publishers together strong
For publishers, and to some degree countless other businesses enmeshed with the Google ad ecosystem, this looks like a gigantic victory of which we will hear much more as the implications become clearer. Even if others do not go to court, the ruling can give powerful leverage to our industry as the threat of action now has far more implied weight behind it.
A moment too to celebrate those behind the action, with a shout out to Gannett, the Daily Mail, Inform, and a group of smaller unnamed publishers waiting in the wings as looming litigants.
I think it’s important to highlight it being publishers themselves which gained this massive win in New York. The tech industry has picked us off piecemeal so easily in the past decades, relying on a lack of unity and individual deals to keep the choir out of tune. A legal victory gained by the combined legal forces of just a few working together is of note, as is “a proposed class of smaller publishers” being included in their case: there will be a trickle down effect.
The complaint against Google was filed in 2023 “for monopolization of advertising technology markets and deceptive commercial practices”, with the motivation for publishers being “in 2022, Google made upwards of $30 billion in revenue from the sale of ad space on publishers’ websites which was six times the digital advertising revenue of all US news publications, combined.”
It’s never not staggering to reflect how this situation was allowed to arise, and every time I read such figures stating the cash chasm between us and them, and reflect on the damage done to our industry, I do get a little mad. Yet now, and it’s a big yet, maybe the biggest yet yet, we have the chance to not just get mad - but to get even.
The forms payback will take is not at all certain - yet - but it seems certain it will involve Google transferring some of their considerable pile of ill-gotten gains to those they earned the gains from.
Quite what sums and remedies will be involved is again an unknown, but I’ll be looking for the word “punitive” to feature in there when further rulings start to be made. Given the current situation with publishers and Google’s AI search intentions, any goodwill between us and them is not so much AWOL as it is taking a long self-catering vacation in Hell.
To those fearing this ruling only applies to the US, they may be technically correct - but the effect may spread far beyond. As trial devotee Jason Kint observed in his excellent thread on the New York ruling, Judge Castel “fully adopted Brinkema’s worldwide market definition for ad servers and ad exchanges. Google’s dominance - over 90% share in ad serving - is legally established”.
That gives other jurisdictions a water-tight data point from which to proceed in their own actions, and more importantly, it provides powerful political cover to go after Google for those who need the excuse.
In all the time this column has existed, our primary contention has been that there has been zero chance for publishers to get their just rewards from the advertising they attract while Google controlled so much of that advertising market, and controlled it in self-protecting ways.
The thought that this may no longer be the case and redress is available is actually hard to absorb. But absorb it we will, and with consequences.
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