Nor is this market dominance of recent vintage. Google has enjoyed an over-80% share since at least 2009. FOF ¶¶ 23–24. That is a durable dominant share by any measure.
- 3. Indirect Evidence—Barriers to Entry
Barriers to entry are essential to establishing monopoly power because the current market share may not reflect the “possibility of competition from new entrants[.]” Microsoft, 253 F.3d at 54. “[I]f barriers to entry are high, then market power can be sustainable over a long period of time.” Tr. at 4763:21-22 (Whinston). Plaintiffs identify several such barriers to the general search services market: (1) high capital costs, (2) Google’s control of key distribution channels, (3) brand recognition, and (4) scale. The court finds that these barriers exist and that, both individually and collectively, they are significant barriers that protect Google’s market dominance in general search.
- a. High Capital Costs
“[T]he need for large capital outlays and lengthy construction programs in order to enter the market” is a barrier to entry. AT&T, 740 F.2d at 1002; see Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 307 (3d Cir. 2007) (barriers to entry include “high capital costs, or technological obstacles, that prevent new competition from entering a market in response to a monopolist’s supracompetitive prices”); Syufy Enters., 903 F.2d at 667 (structural barriers include “onerous front-end investments that might deter competition from all but the hardiest and most financially secure investors”).
Building and maintaining a competitive GSE require an extraordinary upfront capital investment, to the tune of billions of dollars. FOF ¶¶ 50–55. Apple’s Chief of Machine Learning and AI Strategy, John Giannandrea, testified that “a startup could not raise enough money . . . to build a very good, large-scale search engine” because “to build a competitive project is very
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