8728:23-24 (Israel). This suggests that users see Google and other GSEs as substitutes, such that using Google obviates a need to use another GSE.
- 3. Unique Production Facilities
“If a product requires unique production facilities, and the producer raises the price above the competitive level, the ability of other producers to shift resources to make the product would be limited, and the market definition should be likewise limited.” Rothery Storage, 792 F.2d at 218 n.4. For a zero-cost product like a GSE, this factor is of limited application unless slightly modified to use quality as the relevant variable, instead of price.
Imagine if Google’s search quality substantially degraded, whether purposely or through neglect. Would SVPs or social media platforms be able to shift resources to put out a product that resembles a GSE and thereby capture a significant number of dissatisfied Google users? The answer obviously is no. Absent extraordinary cost and expense, neither Amazon nor Meta could become a source for noncommercial or navigational queries. See infra Section II.C.3.a. Wikipedia likewise could not become a source for commercial or navigational ones. And even if an SVP or social media firm were willing to make the required intense resource commitments, adapting its platform to perform general search functions would take a long time to materialize. Cf. Microsoft, 253 F.3d at 53–54 (stating that substitute products are those that can “constrain pricing in the reasonably foreseeable future, and only products that can enter the market in a relatively short time can perform this function”).
***
Accordingly, the relevant Brown Shoe factors warrant recognition of a general search services market.
146
