Day 6: Google Begins Its Defense With an Ode To Its Benevolence

Yesterday, the DOJ rested its case, though it will call two late witnesses tomorrow, and Google began its defense. The main topic was the Final Auction Logic of Google’s publisher software, but the trial day began on a different note, with a discussion of a Google motion to dismiss the morning’s first witness, Arnaud Créput, testifying by video from France. It was a quick conversation before the bench, and made mostly of references to Google’s complicated legal history in France.

DOJ opened the conversation by saying up front it did not intend to ask the witness about Google’s compliance (or not) with French court orders. This was a reference to the day three “recidivism” issue I wrote about last week: recall Judge Brinkema was chiding DOJ for the presumption of bad faith from Google that “permeated” its witnesses’ testimony. As US v Google (a website covering this trial) put it in their coverage that day, when Judge Brinkema asked if there is any history of Google being enjoined and then violating the injunction (i.e. recidivism), “DOJ jumps in to point to Google’s 2021 adtech antitrust fine in France, which they note that Arnaud Creput would be speaking to.”

This is the background to Google’s motion to dismiss Créput’s testimony. So, DOJ opened with a promise not to raise the issue, as Judge Brinkema immediately pointed out that without testimony from the French Competition Authority, it would be hearsay that Google had violated its order. At least, that was my understanding of the exchange. In any case, she denied the motion except with regard to hearsay, allowing Créput to testify but only about his own experience.

Arnaud Créput is CEO of Equativ, and ad tech server company. Despite the fiery introduction to his testimony—or perhaps because it constrained him—that testimony was pretty tame. He is another witness from the business community of Google’s competitors, basically the French equivalent of James Avery of Kevel, from whom we heard on day two. He reiterated the main points: the lack of transparency from Google, the need for divestiture of AdX (at least), the importance of preventing Google from replicating the tying by bidding directly from its demand side into DFP, etc. But we already know from Judge Brinkema last week that she considers this kind of testimony “window dressing,” and thinks the technical experts are the heart of the matter.

The mechanics ...