Hope in Almunia’s Fordham Speech: Is Someone Big Enough to Challenge the Leviathan?

When the European Commission’s Competition Commissioner Joaquín Almunia first started settlement discussions with Google regarding its dominant position and bad behavior toward competitors in Europe, he expressed a preference for a settlement over a “Statement of Objections” (essentially a finding by the Commission that Google likely violated the European antitrust law and ought to change its business).

He said:

“I believe that these fast-moving markets would particularly benefit from a quick resolution of the competition issues identified.”

That was May 21, almost four months ago to the day.  While one can sympathize with Mr. Almunia in that the issues are complex and the defendant well-heeled and uncooperative, if you have had any experience with Google you know that their favorite game is obfuscation, delay with almost unbelievably legalistic and litigation oriented methods.  While the markets may be fast moving, Google descends on those markets like a slow moving hurricane, using its tremendous financial strength to exploit every leak in the roof.  Until the roof caves in.

Case in point: Google Books.  When the case was filed in 2005, did anyone seriously think at that time that seven years later Google would have scanned over 10 million books (no one but Google knows the actual number).  That seven years later Google would challenge the authors’ and photographers’ right to be represented by their union–an issue that Google had not challenged for seven years of litigation?  A “quick resolution”?

Case in point: YouTube.  When Google acquired the company in 2006, did anyone think that they would use their monopoly profits from search to subsidize the company for six years and on to the forseeable future?  Did anyone think they would adopt the “notice and shakedown” business model?  And get away with it? And the Viacom case and related class action still grinds on.  A “quick resolution”?

I could go on.

I’m encouraged by Mr. Almunia’s statement quoted by Bloomberg that settling the antitrust case was an option he would not keep on the table “forever”:

“‘To explore the possibilities of an [antitrust] settlement is not open forever,’ Almunia said. He added: ‘I have no deadline.’”

I feel confident that Mr. Almunia is probably too good a poker player to actually say publicly what his deadline is, so I seriously doubt that he has not defined in his own mind the limits of what good public policy demands, not to mention his own patience.

I’m sure he knows what anyone who has dealt with Google has learned, usually the hard way.  That line that we won’t cross is way, way, way in their rear view mirror.  They are not having a serious negotiation with Mr. Almunia.  They’re just trying to extend the day that they bring in their litigators or they somehow maneuver Mr. Almunia out of his job in exchange for a more compliant official.  They have no intention of settling anything.  There is no intention of a “quick resolution”–that is already four months in process and producing no fruitful progress.

But I am encouraged that Mr. Almunia is standing up to the Leviathan of Mountain View.  Someone has to.  Not that he’s looking for free advice from me, but I’d suggest to him that he may as well file his Statement of Objections.  Google has managed to play the okie doke with him for four months–each month that passes is torture for the entrepreneurs who Google is bullying, and each month is just more cash in Google’s pockets to fund the inevitable litigation.

While hope springs eternal, eternity is too long to wait.