Breaking Up Google: Why This Is Not Microsoft Circa 2000

The previous antitrust villain will likely benefit the most

Photo by Bastian Riccardi on Unsplash

There’s a cruel irony to breaking up Google. The company that stands to benefit most is Microsoft; the same tech giant that faced antitrust scrutiny, near breakup, and years of stagnation while Google filled the void with its domination of search and mobile operating systems. Now, Google is hearing the antitrust music, and Microsoft’s Bing is poised to capitalize. 

The U.S. Department of Justice (“DOJ”), in its antitrust case against Google, wants us to think it’s Microsoft circa 2000 when Microsoft was found to have “unlawfully maintained a monopoly in Windows and unlawfully tied its Web browser to Windows.” The DOJ has been successful to date in drawing this comparison. The U.S. District Court for the District of Columbia recently held that Google has unlawfully maintained a monopoly in two product markets – general search services and general text advertising – through its exclusive distribution agreements.

We have yet to learn the court’s remedy as of this writing, but there have been murmurs that the DOJ is pushing to break up Google, specifically with a forced divestment of Android. The same breakup remedy was initially ordered in the Microsoft case in 2000. Microsoft was almost split into two separate companies, but this was later reversed and they entered into a consent decree instead.     

I will compare the Microsoft case to Google in more detail below, including how the consent decree may have been worse for Microsoft than a complete breakup. But before I get there, one overarching point needs to be made clear – Google is not Microsoft circa 2000.

Google may maintain a monopoly in search, but as any antitrust legal scholar will tell you, bigness is not necessarily badness. America and its judiciary have historically celebrated companies that achieve grand scale because of innovative and quality products. Problems may arise, however, should this “bigness” be achieved through anticompetitive actions.

There is a chief distinction between the Google case in 2024 and the Microsoft one from 2000; a distinction largely glossed over by the District Court that Google’s lawyers should emphasize more on appeal – in 2000, Microsoft owned the primary distribution channel in Windows (some 97% market share) that included their Internet Explorer web browser, which was found to unlawfully compete with Netscape Navigator. Conversely, Google in 2024 does not own the primary distribution channels but instead enters into arms-length contracts with them.

As a result, nobody is forced to use Google Search in the same way Microsoft Internet Explorer was thrust upon Windows users two decades ago. Companies like Apple have decided it’s in their best interests, and those of their customers, if Google Search is promoted over alternatives like Bing. Largely because Google Search is a quality product, which the District Court in the Google case admits numerous times. 

This case and the implications it brings of potentially breaking up Google, one of the most important and successful technology firms in recent history, is the biggest since the antitrust case against Microsoft in 2000. Its ruling and remedy will also set the blueprint for multiple antitrust actions currently pending against other big tech giants like Apple and Amazon.

Antitrust enforcement against big tech is one of the rare bipartisan issues in an otherwise polarized America (plaintiffs against Google include a mix of red and blue states). My perspective, therefore, may be a little contrarian. But I simply want to encourage a thoughtful antitrust approach that punishes anticompetitive behavior, not quality innovation purely because that innovation reached a certain scale at a certain political moment.      

To thoughtfully examine the antitrust case against Google, let’s first compare it to Microsoft’s case in 2000, assess the likely remedies against Google along with their implications, and analyze what the court may have missed (and what’s ripe for appeal) in concluding that Google has an unlawful monopoly in general search services and general text advertising through its exclusive distribution agreements.