Google has been found liable for monopolization by federal judges twice now. Both times, however, the judges have allowed the company’s monopoly to remain intact. The rather dire message this sends to would-be monopolists is that their business model will be protected even if they are found to have broken the law. It’s an ominous development as the tech industry seeks to shift its dominance into artificial intelligence, even as enforcers find more ways that platforms are abusing their power.
We don’t yet know everything about the latest ruling because it will be under seal for a couple of weeks. But we know the important thing: Google will be allowed to continue to run all sides of the advertising technology stack, including the “sell side” where advertisers make bids, the “buy side” where publishers offer inventory on their websites, and the “ad exchange” where both sides come together in real-time auctions. For years, this integration enabled Google to extract billions of dollars from publishers and advertisers in a market it controlled. It was found guilty of this, yet will not have to give up any of those pieces.
Yesterday, Judge Leonie Brinkema rejected the divestiture of AdX, the ad exchange part of the architecture, as well as the Justice Department’s proposal that source code for the publisher tools be made public, with the option of breaking that piece of Google’s business off if competition didn’t improve.
The judge did accept a series of “behavioral remedies,” which we don’t have the details for yet. But Google is already declaring victory. “We’re very pleased the court rejected the DOJ’s proposal to break apart tools that help small businesses reach new customers and grow,” Lee-Anne Mulholland, a Google vice president of regulatory affairs, said in a statement.
The cleanest and easiest way to stop a monopolist is to break up their monopoly. But the courts have simply disregarded such a breakup as an option.
Just last year, Judge Brinkema said that Google blocked publishers from using alternative ad server tools if they wanted to access Google’s dominant ad exchanges, leading to a “substantial anticompetitive effect.” The cleanest and easiest way to stop a monopolist is to break up their monopoly. But the courts have simply disregarded such a breakup as an option, with the implication that antitrust law isn’t an available remedy for the concentration of corporate power in its current configuration.
Google argued during a two-week trial that a breakup would be too difficult.
Judge Brinkema’s ruling mirrors the remedy ordered by Judge Amit Mehta in a different monopolization case about Google Search. In that case, too, Judge Mehta found Google to be monopolizing search by making deals for billions of dollars to buy placement on Apple products, but then allowed those deals to continue. Judge Brinkema’s behavioral remedies may end up having a little more teeth than Judge Mehta’s; that remains to be seen. But fundamentally, both judges looked a monopoly in the face and said that the best course of action was to keep everything the same.
“The U.S. judiciary is abdicating its congressionally mandated duty to apply the text and spirit of the nation’s antitrust laws,” said Barry Lynn of the Open Markets Institute in a statement. “Google will remain largely free to pose an increasingly absolute threat to the core foundations of democracy—freedom of speech, freedom of thought and spirit, and freedom of the press.”
Both Google cases were put together by President Biden’s Antitrust Division chief, Jonathan Kanter, who hailed both as victories for the free and open internet. But without any courage by judges to follow their rulings to their logical conclusion, these victories are just hollow, just pieces of paper acknowledging a winning argument without doing much about it.
It’s especially galling to see the Google adtech ruling come up short this week. Because on Monday, the Federal Trade Commission and 20 states filed a complaint showing precisely what a company in control of the real-time auctions that determine the ads you see on the internet can do with that power.
The lawsuit didn’t involve Google but Amazon, an up-and-comer in the adtech business. Amazon controls the ads on its own platform, and advertisers (including the third-party sellers who operate on the platform and are forced to advertise to get any customer traffic to their products) engage in auctions for those spots. The way it’s supposed to work is that competitive bidding leads the auction winner to pay one cent above the second-highest price offered for the ad. But Amazon initiated a secret system to inflate those prices and charge advertisers an estimated $20 billion more than that competitive-bidding model since 2019.
That’s profit due completely to Amazon’s monopolistic control. The company promised a certain price point, then just changed it while deliberately hiding this fact from its customers. If there were a competitive adtech market for Amazon and other websites, and if Amazon wasn’t able to be both the seller of ad space on its site and the auctioneer, this never could have happened.
But considering that we just got done confirming that Google was an extractive adtech monopolist but that the company would not need to be broken up as a result, I don’t see any way that the Amazon case will end favorably. Amazon paid $2.5 billion earlier this year to settle allegations that it made it impossible to cancel Prime subscriptions while duping people into signing up for them. But money is a renewable resource for Amazon. Even if it has to pay back some advertisers for ripping them off, as long as it controls the machinery, it can tweak it to avail itself of more revenue, and maybe pay some of it back if it gets caught down the road.
Amazon is also in the middle of a monopolization trial over raising prices across the internet. But judges have now made it perfectly clear that such proceedings are mostly for show.
We have a serious problem in this country. Earnings per share for the biggest companies in the S&P 500 went up 53 percent in the second quarter of the year compared to the same time period in 2025. Hundreds of companies pocketed tariff refunds and never altered their own prices, one of the biggest windfalls in corporate history. They are salivating at the prospect of artificial intelligence allowing them to gouge customers some more: Delta CEO Ed Bastian recently said that AI would improve profitability by up to 50 percent.
In short, giant corporations are eating America, and nobody wants to apply the law to keep them from the table. The judiciary has been sufficiently neutered, the president is completely in the tank, give or take an angry Truth Social post, and Congress is a largely inert entity that can be managed with skillful application of campaign contributions. California just passed the biggest update to its antitrust laws in decades, but after massive Chamber of Commerce lobbying, removed the private right of action that allows private litigants to sue under the law, making it one of only two states (the other is Arkansas) to limit citizens in this manner.
It’s a bad situation.
If anything positive is to be gained from this, it’s that the next set of progressive policy leaders bear the battle scars of every weak-kneed jurist and useless decision, and won’t forget.
