Nor is it proof of monopoly power that Google considers the business case for making privacy adjustments. There is some tradeoff between privacy and search quality. FOF ¶¶ 121–125. For example, less information about a user’s search history might produce inferior results when the user returns to find more information about a previously searched topic. See id.; Tr. at 9905:1-10 (Murphy) (“Privacy is good, but it comes at a tradeoff from quality.”). Also, Google’s employees convincingly testified that Google refrained from particular privacy measures adopted by rivals to prioritize an improved user experience. FOF ¶ 120. That Google offers fewer privacy protections than DDG without losing users is thus not necessarily indicative of monopoly power. It may just be that users are willing to sacrifice enhanced privacy offerings for improved search functionality.
- 2. Indirect Evidence—Market Share
Assessing monopoly power through indirect evidence begins with determining market share. Although there is no minimum percentage, the Supreme Court has recognized that two-thirds of a domestic market can constitute a “predominant share.” Grinnell, 384 U.S. at 571 (citing Am. Tobacco, 328 U.S. at 797). Duration also matters. “Monopoly power must be shown to be persistent in order to warrant judicial intervention[.]” Areeda & Hovencamp, Antitrust Law ¶ 801d (5th ed. 2022) [hereinafter Areeda]. Plaintiffs easily have demonstrated that Google possesses a dominant market share. Measured by query volume, Google enjoys an 89.2% share of the market for general search services, which increases to 94.9% on mobile devices. FOF ¶¶ 23–24. This overwhelms Bing’s share of 5.5% on all queries and 1.3% on mobile, as well as Yahoo’s and DDG’s shares, which are under 3% regardless of device type. FOF ¶ 25. Google does not contest these figures. Closing Arg. Tr. at 68:17–69:6.
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