Day 10: Parsing and Parrying

Friday was day ten of the Google ad tech remedy trial, and it felt like Friday; everyone was antsy to get this over with. It was also a short day, with this trial running into other commitments for Judge Brinkema, presumably scheduled because the trial might or might not have been finished by today. Short as it was—we started an hour and a half late and lunch went a half hour over—the day felt long for us spectators, because not much new appeared in the testimony. Aside from one telling moment late in the day, the two sides seemed like two sports teams playing for a draw, less concerned with winning than with avoiding injury before the next round.

I take the two sides’ caution as an indication that nobody is confident in predicting how Judge Brinkema will rule, especially on the central questions of this trial: will the court force Google to divest itself of its ad exchange, AdX, and to make the decision logic of its ad server, DFP, open source? Uncertainty also indicates the high regard for Judge Brinkema: she is not intimidated by big business lining up to say government should stick to minding the lowly while we high and mighty forge the future of the human race; she is also not swayed by activist moralizing about evil corporations. And she is well on top of the merits of this case. The merits, though, offer very good reasons the judgment could go either way.

I will use this slow day, with its minimal new substance, to tell you about some of the dynamics I observe, as well as the courtroom setting. Interesting dynamics were visible in the testimony of the day’s first witness, Stephanie Layser. Layser is currently with Amazon Web Services (AWS) and, more importantly, was formerly VP of Advertising Technology and Operations at News Corp. At News Corp, Layser was among the creators of header bidding (described on day one), which was sort of the insurrection of all the mid-sized players in advertising technology against the Google giant. Layser’s work with AWS is less hands-on than her former position was, and Google used that fact to argue—unsuccessfully—that her knowledge of the markets is obsolete and her testimony should be excluded (Google’s motion was denied first thing on day nine).

Layser was testifying as the DOJ’s first rebuttal witness. There are rules about relevance ...