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Day 6: Google begins its defense with an ode to its benevolence

Jerry Cayford · · ·10 min read
Commentary by Hex Index staff

Jerry Cayford captures a pivotal shift in the historic antitrust trial against Google, where the tech giant's defense pivoted from pure legal maneuvering to a philosophical plea for "benevolent dictatorship." While the Department of Justice rested its case on technical violations, Cayford observes that Google's opening defense was less about denying the mechanics of their monopoly and more about selling a vision of efficiency that only they can provide. This is not merely a legal dispute over code; it is a clash between the messy reality of a competitive market and the seductive promise of a perfectly managed, albeit controlled, digital ecosystem.

The French Witness and the Hearsay Hurdle

The trial's sixth day began with a procedural skirmish that revealed the administration's strategic caution. Google attempted to block testimony from Arnaud Créput, the CEO of Equativ, citing Google's prior legal troubles in France. The administration, however, wisely walked back the aggressive framing. As Cayford notes, the Department of Justice "opened the conversation by saying up front it did not intend to ask the witness about Google's compliance (or not) with French court orders." This restraint was crucial. Judge Brinkema had previously chided the government for a "presumption of bad faith," and by avoiding the recidivism trap, the prosecution kept the focus on current market dynamics rather than past grievances.

Day 6: Google begins its defense with an ode to its benevolence

Cayford describes the resulting testimony as "pretty tame," yet it reinforced the core complaint of Google's competitors: a lack of transparency. Créput argued for the divestiture of Google's ad exchange, AdX, to prevent the company from tying its demand-side tools to its publisher software. However, the author points out a significant limitation in this approach. "Judge Brinkema... considers this kind of testimony 'window dressing,' and thinks the technical experts are the heart of the matter." This is a sharp observation. While business leaders can describe the pain of the market, they cannot dismantle the complex algorithms that cause it. The judge's skepticism suggests that the court is looking for hard engineering evidence, not just business grievances.

The Seduction of Benevolent Dictatorship

The narrative shifted dramatically when Google's own executives took the stand. Scott Sheffer, a Vice President at Google, painted a picture of the future filled with artificial intelligence and interactive avatars. Cayford captures a surprising tone in Sheffer's delivery: "Call it 'enthusiasm' or even 'wonder.' He seemed genuinely excited by the possibilities for the future he was seeing." This moment is critical because it exposes the psychological core of Google's defense. It is not just about greed; it is a genuine belief that their centralized control is necessary to unlock the next generation of digital advertising.

"Google's conviction in the liability phase... show the corruption has started."

The author argues that this enthusiasm masks a deeper philosophical conflict. Google is essentially arguing that their "benevolent dictatorship" is superior to the chaos of a free market. They claim that their software, GAM, does not just run auctions but manages the entire universe of ad spaces to maximize revenue for everyone. Cayford writes, "So, yes, Google 'manipulates' bids in a small, pedantic sense, but only for the greater good." This framing is dangerous because it relies on the assumption that the monopolist's definition of "good" aligns with the public's. Critics might note that history is littered with monopolies that claimed efficiency while stifling innovation, but Google's argument is that their scale allows for a sophistication that competitors simply cannot match.

The Trap of Open Source

The most damaging moment for Google's defense came from their own internal logic. George Levitte, a Director of Product Management, tried to argue that the Department of Justice's proposed remedies were too complex and would take years to implement. However, he inadvertently conceded that his team had previously considered plans that were nearly identical to the DOJ's structural remedies. "Once those reports were in the court records, that battle was lost," Cayford observes.

The situation became even more precarious when Levitte argued that Google's "Final Auction Logic" could not be separated from the rest of their software without destroying the product. By claiming that the decision-making logic is inseparable from the front end, he opened a door that could swing shut on Google entirely. Cayford points out the irony: "Should Google succeed in convincing the court that all of the ad server decision logic is continuous with the final decision, it is within the court's power... to transfer all the DFP decision logic to open-source." This is a classic case of a defendant digging their own grave with their own technical arguments. If the logic is inseparable, the remedy is simple: give the logic to everyone.

The Final Concession

The day concluded with a stunning admission from Glenn Berntson, an Engineering Director for Google. When pressed on whether Google could reveal all its data and decision logic, Berntson admitted, "I believe I am [authorized to speak for Google], yes." He acknowledged that while it might be technically feasible, it would worsen the open internet. Cayford frames this as the climax of the philosophical debate: "A fair ad tech market would be a societal choice of competition over Google-managed welfare maximization, or the dream of it, anyway."

This admission is the smoking gun. It confirms that the technology exists to create a transparent, open market, but Google chooses not to implement it because it serves their bottom line better to keep the black box closed. The author notes that Berntson's shift from "specious rationalizations" to a genuine explanation of Google's mission revealed the core tension: Google believes they are the only ones capable of managing the system correctly. Yet, as Cayford concludes, "democracy was never meant to be supremely competent and efficient; it is meant to be robust, fair, adaptable, free."

Bottom Line

Jerry Cayford's coverage brilliantly exposes the fragility of Google's defense, which relies on the idea that their monopoly is a necessary evil for technological progress. The strongest part of the argument is the revelation that Google's own engineers admit the transparency they resist is technically feasible. The biggest vulnerability in Google's position is their own internal documentation, which suggests they have long considered the very remedies the Department of Justice is now demanding. Readers should watch closely as the court weighs whether the efficiency of a "benevolent dictatorship" can ever outweigh the fundamental right to a competitive market.

Sources

Day 6: Google begins its defense with an ode to its benevolence

by Jerry Cayford · · Read full article

Yesterday, the DOJ rested its case, though it will call two late witnesses tomorrow, and Google began its defense. The main topic was the Final Auction Logic of Google’s publisher software, but the trial day began on a different note, with a discussion of a Google motion to dismiss the morning’s first witness, Arnaud Créput, testifying by video from France. It was a quick conversation before the bench, and made mostly of references to Google’s complicated legal history in France.

DOJ opened the conversation by saying up front it did not intend to ask the witness about Google’s compliance (or not) with French court orders. This was a reference to the day three “recidivism” issue I wrote about last week: recall Judge Brinkema was chiding DOJ for the presumption of bad faith from Google that “permeated” its witnesses’ testimony. As US v Google (a website covering this trial) put it in their coverage that day, when Judge Brinkema asked if there is any history of Google being enjoined and then violating the injunction (i.e. recidivism), “DOJ jumps in to point to Google’s 2021 adtech antitrust fine in France, which they note that Arnaud Creput would be speaking to.”

This is the background to Google’s motion to dismiss Créput’s testimony. So, DOJ opened with a promise not to raise the issue, as Judge Brinkema immediately pointed out that without testimony from the French Competition Authority, it would be hearsay that Google had violated its order. At least, that was my understanding of the exchange. In any case, she denied the motion except with regard to hearsay, allowing Créput to testify but only about his own experience.

Arnaud Créput is CEO of Equativ, and ad tech server company. Despite the fiery introduction to his testimony—or perhaps because it constrained him—that testimony was pretty tame. He is another witness from the business community of Google’s competitors, basically the French equivalent of James Avery of Kevel, from whom we heard on day two. He reiterated the main points: the lack of transparency from Google, the need for divestiture of AdX (at least), the importance of preventing Google from replicating the tying by bidding directly from its demand side into DFP, etc. But we already know from Judge Brinkema last week that she considers this kind of testimony “window dressing,” and thinks the technical experts are the heart of the matter.

The mechanics of Créput’s ...