price “when it is desired to do so” is proof of monopoly power, Am. Tobacco, 328 U.S. at 811, so too is the ability to degrade product quality without concern of losing consumers, see Andrew Chin, Antitrust Analysis in Software Product Markets: A First Principles Approach, 18 Harv. J.L. & Tech. 1, 22 n.134 (2004) (“A seller with market power may find it profitable to reduce product quality in the eyes of a captive group of consumers if the seller can thereby reduce production costs or, more generally, if the seller’s interests are adverse in some way to the consumers’ preferences.”). The fact that Google makes product changes without concern that its users might go elsewhere is something only a firm with monopoly power could do. See Microsoft, 253 F.3d at 58 (observing that Microsoft’s setting “the price of Windows without considering rivals’ prices” is “something a firm without a monopoly would have been unable to do”).
Other direct evidence presented was less persuasive. Plaintiffs submitted evidence that Google’s Senior Vice President of Knowledge and Information Products, Dr. Prabhakar Raghavan, cautioned his team against responding hastily to DDG’s privacy initiatives absent a business case for doing so. FOF ¶¶ 138, 118–119. According to Plaintiffs, Google’s ability to offer fewer privacy protections—without concern as to a rival’s superior privacy offerings—is evidence of monopoly power. See U.S. Plaintiffs’ Post-Trial Br., ECF No. 838 [hereinafter UPTB], at 53–55. But using privacy to demonstrate monopoly power is questionable for a host of reasons. For one, Plaintiffs have not established any framework for evaluating whether Google’s privacy offerings are suboptimal. Sure, there was evidence that users generally care about privacy. FOF ¶ 116. But Plaintiffs submitted little proof that identified the privacy features users value and, importantly, whether Google declined to adopt such features without any concern that its users would go elsewhere.
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