Nikita Munjal is a 3L JD/MBA Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

Using the Internet inevitably requires consenting to have your personal information used, collected, and disclosed by the websites you visit. A common reason for individuals, corporations, and non-profit organizations to collect your personal information is to influence your behaviour online, from your to your . One of the most effective ways to influence consumer behaviour online is through targeted advertising.

Value for Advertisers

Access to personal information has become necessary for advertisers to convert potential leads into customers. Think back to 2012, for example, when a suggested that a statistician working at Target predicted a teenage girl’s pregnancy based on her shopping habits. What did Target do with this information? It mailed her coupons for baby clothes and cribs.

that the value of your personal information to advertisers depends on various factors. Factors influencing value include your gender, race, and sensitivity of the information (that is, cost more than ). If, for example, the target audience for a new sneaker launch is young males of middle eastern origin, the spent to acquire your personal information is a minor investment to incur to influence you to purchase $180 sneakers.

Value for Users

Traditionally, users have valued the ability to share their personal information while using online services, like search engines or social media platforms, citing their .

However, increasingly, . This trend has mobilized startups in Silicon Valley to appeal to privacy-conscious users by providing them an incentive to share their personal information. Known as paid-to-surf models, companies in this space require their users to install browser extensions to track their browsing.

What monetary value do some privacy-conscious users demand to share their personal information? $20 a month for users of . Others are . While these paid-to-surf models have the potential to be disruptive, they are not yet a viable alternative, as users must surf a certain amount before they can cash out. ��

Value Going Forward

The tech industry has built empires based on collecting, using, and selling its users’ personal information to third-party advertisers. Surprisingly, some factions of the tech industry are modifying their business models to limit the tracking of personal information. Apple, for example, introduced a new iOS in 2021, s. Similarly, on its Chrome browser is estimated to impact millions of advertisers.

Apple and Google argue that these changes are necessary to respond to increasing and customer sensitivity to sharing personal information (the IPilogue has documented increased regulation in the and ). However, , including , lament that the changes are veiled anti-competitive practices.

Interestingly, increasing barriers to the online advertising ecosystem may benefit users. If access to personal information becomes impeded, interested parties may need to incentivize users to share their personal information, increasing users’ bargaining power. Although it is unclear what effect Apple and Google’s changes will have on the ecosystem, I am hopeful that users can leverage more control over their personal information for fair compensation by technology companies or advertisers for their valuable commodity.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

This past summer, Amazon made headlines when it announced an update that would make Alexa capable of , just after hearing under a minute of audio. While people are still unsure as to whether this is heartwarming or just plain creepy, AI continues to evolve, with recent developments showing its ability to not only mimic human speech but also singing.

AI-based audio technologies have been making waves worldwide. Last month, Google announced “”, which proposes “a new framework for audio generation that learns to generate realistic speech and piano music by listening to audio only”. More recently, , China’s leading music entertainment platform, demonstrated the influence of AI in music. According to Music Business Worldwide, the company has released over - one of the tracks surpassing 100 M streams. TME utilized a “patented voice synthesis technology” called “Lingyin Engine”, which the company claims can “quickly and vividly replicate singers’ voices to produce original songs of any style and language.” South Korea has been a strong player, with its most prominent AI-based audio start-up, . The company claims that its voice synthesis and real-time voice enhancement technology can create a hyper-realistic voice that is indistinguishable from real humans.

So far, these AI voice technologies have largely been publicized as an innovative way of and preserving the memories of lost loved ones. Nevertheless, companies will likely aggressively pursue these technologies for profit. In fact, according to NME, (record label of globally recognized boy band, BTS), which equates to about $44.6 million Canadian Dollars. last month, HYBE’s CEO confirmed that the company plans to “unveil new content and services to [its] fans by combining our content-creation capabilities with Supertone’s AI-based speaking and singing vocal synthesis technology.”

HYBE’s huge investment in Supertone starts to make a little more sense once we discover that the company’s “” in Q3 2022 was its Artist ‘Indirect-involvement’ revenues. BTS’s success suggests how more entertainment companies will follow HYBE’s footsteps to increase profits without the headache of coordinating any physical appearances of its artists.

The development of voice AI opens a plethora of legal questions to consider. These issues were highlighted more recently by the recent - who is given permission to use it and does the artist hold any rights to license their voice to third parties for use in other films? More specifically for , how do we determine who owns the copyright to the work? Does it make sense to look at the creators of the voice AI technologies themselves or at the source of the vocal data (the artist)? These questions clarify that the development of voice AI places our artists in a very vulnerable position — suggesting a much-needed intermission for this chaotic programme.

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Pankhuri Malik is an IPilogue Writer, IP Innovation Clinic Fellow, and an LLM Candidate at Osgoode Hall Law School.

In the latest development in the global patent wars between Google and Sonos, Google has Sonos, having filed two suits in the United States District Court for the Northern District of California on August 8, 2022. Through these , Google has Sonos of infringing seven (7) of its patents related to , including detection of “hotwords” and wireless charging.

Google and Sonos’ spotty history

Google and Sonos have been trying to one-up each other since the beginning of the pandemic. As reported , in January 2022, two years after Sonos filed the first patent infringement lawsuit against Google, the United States International Trade Commission issued a ruling in favour of Sonos holding Google’s products infringing on five of Sonos’ smart speaker related patents, and banning the import of goods with the infringing features into the US.

To circumvent the import ban, Google chose to roll back many features offered to its customers at the time of sale of the products. Expectedly, the decision to remove functionality instead of licensing the patents from Sonos has caused some with Google’s customers.

Allegedly, the companies had previously worked together to incorporate Google voice assistant on Sonos devices. But this relationship soured soon after, with Sonos Google of monopolistic practices and of using patent laws to squash competition from small companies. Google, on the other hand, that they collaborated to develop new technology and accuses Sonos of leading a misleading campaign against Google.

Most interestingly, Sonos has accused Google of something called . ��Sonos claims that Google’s infringement of over 100 of Sonos’ patents is deliberate and a business model. Efficient infringement refers to Google’s bet that the cost of contesting and paying off patent infringement lawsuits will be significantly less than the profits earned from sale of the technology. Sonos also says that Google has been undercutting its prices to crowd competitors out of the market.

The present suit

On August 8, Google filed two lawsuits against Sonos it of infringing seven of Google’s patents through a range of products, such as Sonos Move, Sonos Roam, Sonos Arc and Sonos One. The company also plans to file these actions before the United States International Trade Commission to ban imports of allegedly infringing Sonos products into the US.

Sonos has responded by accusing Google of using the lawsuits as an intimidation tactic against Sonos calling out Google’s practices.

What may occur moving forward

Neither company has a history of using patent laws offensively. While Google continues to collect user data and uses online as its main money-maker, its approach on initiating litigation, like Sonos, has been lackadaisical.

But with both companies facing off in multiple jurisdictions, it remains to be seen if there is any merit to Sonos’ claim of efficient infringement.

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Anita Gogia is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Pessimism is to innovative culture as heat is to ice. It slowly destroys but can be remedied by its polar opposite. On April 28, Halimah DeLaine Prado, the general counsel at Google, wrote about her optimism for innovative culture in an online post. She outlined reforms and recommendations that .

Google’s contribution to the US patent system

Healthy patent systems can sometimes be as a way to incentivize creative inventions, encourage building on existing ideas, and avoid frivolous litigation. Google has created a space that incentivizes innovation by being one of the first companies to . Google has invested in patenting and licensing their engineers’ inventions (), and has sold patents to smaller companies to help strengthen their portfolios. Google also helped the License on Transfer Network. This Network protects members from patent trolls’ claims, these ‘patent trolls’ are described as companies that bring patent claims for profit and to supress competition.

Concern with the US patent system

Patent litigation has been on the , with 46% more patent litigation lawsuits in 2021 than in 2018.

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Patent trolls and opportunistic companies, as DeLaine Prado describes, weaponize patents against competitors which deters innovation and harms the quality of new products. Most notably, says the American “prized ‘culture of innovation’ is being undermined by a ‘culture of litigation.’” ��Such litigation wastes court resources and are a shakedown tactic or to “stretch patents beyond recognition.” Resources spent on wasteful litigation is better used in research and development for new products. In contrast, Google has a history of confronting overreaching patent claims and defending their users and products. Smaller companies “nascent technologies” are unable to fight these lawsuits without raising costs for consumers or harming their ability to create new products.

Google’s recommendation

Google proposes 3 developments: support for the US Patent Trademark Office (PTO), Judiciary review of forum shopping, and congressional changes to address patent abuse.

The PTO receives . The evaluation process has not been streamlined because PTO employees are under-resourced despite the PTO working on AI solutions. Such inefficiency leads to possible issuances of invalid patents, inventors may then be unable to protect their inventions confidently. Others end up having to defend infringement claims against patents that . Google that investing in the patent office can help prevent such issues and are that “important work can finally begin” by the new director of the PTO, Kathi Vidal.. Google also funding the PTO by increasing fees for larger patent filers (including themselves).

At the judicial level, Google Chief Justice Roberts urgently investigates the judicial imbalances caused by abusive forum shopping. DeLaine Prado recommends ending forum shopping as many companies suing patent claims may damage the integrity of the judicial process. In a year-end report on the federal judiciary, Justice Roberts pledged to direct the judicial conference to address patent venue rules and that the . The extreme concentration of patent cases in Waco, Texas in Judge Alan Albright’s court has concerned Senators. To illustrate, approximately 20% of all US patent litigation is filed in Judge Albright’s court.

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Senators have also raised concern that Judge Albright has . have raised concern that this patent-owner friendly policy attracts patent trolls. Senators also note that current case assignment procedures may allow the plaintiff to select a specific judge to hear their case.

Google supports legislation before congress that reduces abusive patent litigation, restoring access to inter partes review, and increasing accountability. Inter partes review was a created by Congress as part of the America Invents Act that helps companies cost-effectively invalidate low-quality patents. This program was created to provide expert review of patents with the greatest impact on the US economy, however changed PTO rules created some barriers to use the program that could be reduced.

Overall, Google’s concern with the lack of promotion of innovation and creativity by the US patent system will likely spark debate and potential reform in the near future.

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On April 23, 2022, the European Parliament and Council reached a provisional political����on the Digital Services Act (DSA). Based on the principle that what is illegal offline should be illegal online, the DSA imposes digital regulations with the goal of stopping the spread of illegal content and ensuring the protection of users’ rights.

The rules set out in the DSA primarily apply to online intermediaries and platforms providing services in the European Union (EU), including online marketplaces, social networks, content-sharing platforms, and app stores. The legislation will impose obligations on regulated entities that are proportionate to the nature of their services and size of their user-base. For example, very large online platforms (VLOPs) and very large online search engines (VLOSEs) with more than 45 million active monthly users will have more stringent responsibilities than micro and small enterprises.

The DSA is set to impose a series of new requirements that will have a significant impact on online business:

1. Online Marketplaces: The DSA will impose a duty of care on online marketplaces in relation to the sellers who list items or services for sale on the platforms. These marketplaces will also have to collect and display certain information in association with listings to better inform consumers.
2. Risk Management: VLOPs and VLOSEs will be obligated to carry out an annual risk reduction analysis aimed at reducing risks associated with (i) the dissemination of illegal content; (ii) adverse effect on fundamental rights; (iii) the manipulation of services that affect democratic processes or public security; and (iv) adverse effects on gender-based violence, minors, and users’ health.
3. Dark Patterns: The DSA will prohibit the use of confusing or deceptive user interfaces and practices that are aimed at misleading users.
4. Recommendation Systems: To improve transparency, the DSA will mandate that VLOPs and VLOSEs offer systems for recommending content to users that is not based on their profiling.��
5. Crisis Response Mechanism: Influenced by the conflict in Ukraine, the DSA allows the European Commission to analyze the impact of VLOPs and VLOSEs on a crisis that is affecting public health or security. Based on this analysis, the European Commission may put in place select measures for the respect of fundamental rights.
6. Minors: Platforms will have to implement protection measures to ensure the online safety of minors, including prohibitions against targeted advertisements based on minors’ personal data.

The provisional agreement is subject to approval by the European Council and Parliament. Once adopted, the DSA will apply 15 months or from January 1, 2024, whichever is later, after entry into force. For the VLOPs and VLOSEs, the DSA will apply four months after their designation.

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Photo by Bence Boros ()

Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

If you are a fan of Google products, you will likely find that some of its home appliances are becoming slightly more cumbersome to use. You may need to individually adjust each speaker in a multi-room audio system instead of using the group volume controller. Some users may have to use a specific app to set up their smart devices and update them. These changes are the result of a recent by the U.S. International Trade Commission which held that Google infringed on five of Sonos’ patents relating to smart speakers.

Sonos is a developer and manufacturer of audio products based in the U.S., best known for its multi-room audio products. According to Sonos, the company began sharing its technology with Google in 2013, when the two started working together. Google was not a competitor at the time, but it soon moved into Sonos’ space, launching its first music streaming device, Chromecast, in 2015 and the Google Home speaker in 2016.��

The lawsuit began in January 2020, with Sonos alleging that Google violated its patents related to audio technologies and used them in products that undercut Sonos. Since then, the parties have been enmeshed in a global with cases across the U.S., Canada, France, Germany, and the Netherlands.

The by the U.S. International Trade Commission came out in August 2021. It determined that Google violated the , which aims to deter unfair competition through prohibiting actions like importing products that infringe on U.S. patents. As a result, the Commission issued an import ban against Google products that infringed Sonos’ patents, mostly manufactured in China. The decision was upheld in the in January.

A New 91��ɫ Times anticipated that the impact of the ruling on Google’s business is likely to be limited. The newer products developed by Google are using different technologies, and Google’s main cash cow, online advertising, remains intact. ��

Yet the conflict between Google and Sonos is important because it reflects the antitrust problems created by the expanding businesses of today’s tech giants. Starting out as a search engine in 1998, Google is now producing a wide range of hardware products including laptops, smartphones, and home devices. Apple and Facebook (now renamed Meta) are also facing similar issues against smaller companies. According to , its lawsuit against Google is meant to “ensure all companies, regardless of size, receive fair compensation for investing in the development of industry leading technology.”

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was Originally posted on E-TIPS For Deeth Williams Wall LLP on November 10, 2021.

On October 27, 2021, the Office of the Privacy Commissioner of Canada (the OPC)����observations following a series of international engagements between data protection and privacy authorities around the world and four of the biggest video teleconferencing (VTC) companies: Microsoft, Cisco, Zoom, and Google (the Organizations).

Earlier this year, the OPC, along with privacy authorities from Australia, Gibraltar, Hong Kong SAR, China, Switzerland and the United Kingdom (the Joint Signatories), sent an����to several VTC companies commenting on the rapid recent expansion of VTC services and highlighting their concerns about whether the companies were implementing appropriate privacy safeguards in their platforms. The Organizations responded to the Joint Signatories’ open letter and described how they account for privacy principles in the design and development of their VTC services. This initial response led to a series of video calls between the Joint Signatories and the Organizations to discuss how the Organizations implement, monitor, and validate their privacy and security measures.

In its observations, the OPC discusses key areas that the Joint Signatories recognized as examples of good practice and recommended for adoption by the broader VTC industry. These areas include:

1. security, such as implementing a regular security testing schedule and ensuring employees and third-party sub-processors comply with privacy obligations;
2. privacy-by-design by adopting an overarching privacy program and placing all VTC settings at the most privacy protective by default;
3. audience-specific resources, including providing enhanced VTC safeguard features for parties that share sensitive information and custom-guidance documents to assist different groups to choose the VTC settings that suit them;
4. transparency through the use of layered notices and informing users of any sharing of their information with third parties; and
5. end-user control to enable VTC customers to decide what information they share when accessing VTC services and provide alerts when there is a danger that meeting information may become publicly available.

In addition to recognizing good practices, the Joint Signatures also identified the following areas for improvement:

1. making end-to-end encryption available to users;
2. clearly identifying any secondary use of users’ data and providing an option for users to opt-in to such processing; and
3. informing users and, if possible, providing them with the option to choose their data storage location and jurisdictions in which their personal information may be routed through by the VTC company.

Based on the success of the Joint Signatories’ discussions with the Organizations, the Joint Signatories expressed that the engagement process used in this instance may prove valuable in future circumstances where dialogue would assist in clarifying regulatory obligations, identifying good practices, and increasing public trust in emerging technologies.

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Photo by Intepat ()

Tianchu��Gao is an��IPilogue��Writer and a 1L JD Candidate at��Osgoode��Hall Law School.��

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The decade-long dispute between Google and Oracle over computer code’s copyrightability finally came to an end on April 5, 2021. It started out in 2010 when Oracle sued Google for copying the ��of��Java, a programming language developed and licensed by Sun Microsystems��and��later��acquired by Oracle, in��Google’s��development of��the����operating system. The fight between the two tech giants, with��billions of��dollars at stake,��attracted��significant����and��.��Many��academics, businesses,��and computer professionals����for��Google before the case was heard at the��U.S.��Supreme Court��on��October 7, 2020.��The����bears great weight in shaping the development of the IT industry and��U.S.��copyright law. It is arguably, as Stanford law professor Mark Lemley coined it, “”����

The case��meandered��through��constant reversals of judicial judgements.��It is composed of two phases centering on two legal issues that were trialed separately—the��copyrightability of APIs��and��the��.��In the first phase, the�� that Oracle’s APIs functioned somewhat like a “system or method of operation” which could be implemented in various ways and, on the facts of the case, Google’s use of them was permitted under the��Copyright Act.��The����and claimed that��“the overall��structure of Oracle's API packages is creative, original, and��‘resembles a taxonomy’.”��It also��ordered��a second��trial��to determine��whether Google’s use of Java��API��was��acceptable under the fair use��doctrine. In��the��, the jury voted��in��favour��of��non-infringement��on the ground that��Google’s use��was��fair.��Oracle appealed successfully. The�� that Google’s use of Java API is a non-transformative use, with transformativeness being a requirement for finding fair use, and that it has profited commercially from Android. As expected, Google was unhappy with the outcome and appealed again. ��

Finally, with the support of��s from the Solicitor General of the United States and numerous other professionals,��the Supreme Court��made a�� that is more in tune with the context of programming and the IT industry. The majority opinion held that, although API is copyrightable, Google’s use of Java API is within the bounds of fair use. It highlighted the distinction between declaring code and implementing code—the former proposes a hypothetical function that serves a particular objective, and the latter is the actual realization of that hypothesis. According to the Supreme Court, Java API is essentially a set of declaring code that resolves general task division and organization. It enables programmers to “ The very creativity that contributes to technological breakthroughs lies in implementation rather than merely declaring code. It is in Google’s interest to use Java APIs, rather than developing its own, because programmers have already invested time and effort to learn them. Google wanted to attract as many programmers as possible to develop smartphone apps on Android, thereby furthering copyright’s creativity objectives. In addition, Breyer J. ruled that Google’s use is “minimal,” about 0.4 percent of the total Java source code, and it does not diminish Java’s marketability since Android is used in different platforms (i.e., smartphones).����

While��some��are����about the chilling effect��that��the decision��may have on programming innovations,��professionals have�� it. It accords with the�� that programmers rely on to pursue innovations. It also marks an important accommodation made in copyright law to face the new challenges posed by the booming IT industry.����

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The Background
In late 2017, an by the Australian Consumer and Competition Commission (ACCC) found a where large digital platforms have “substantial market power” in online advertising. The report indicated that digital platforms use outsourced news to gain “consumer attention and consumer data in order to sell advertising opportunities.” In 2020, on the Australian Government’s behest, the ACCC the draft Code for public consultation.

The Code
proposed changes to Australia’s Competition and Consumer Act 2010 provisions which affect digital platforms. The Code requires digital platforms to enter commercial agreements with news companies before sharing their news items online and resolve any impasse through arbitration. Section 52S of the Code requires digital platforms to notify news companies in advance about changes to their news referral algorithm. Non-compliance would invite penalties up to $10 million.

Both sides
The Australian Government wants to balance the traditional news media’s “” with digital platforms and loss of advertising revenue. In 2019, . The Australian Government believes that digital platforms have built their advertising market power by using outsourced news items on their websites.

In response, while Facebook to block its news viewing and sharing service, Google ran a against the draft Code and issued an about “supporting Australian journalism”. Their surround the risk that sharing algorithm changes with the news publishers could allow some entities “to appear higher in rankings… disadvantaging all other creators.” They also complained about possible disproportionate revenue sharing demands from news organizations and claim that the Code is at odds with the principle of “free and open web”, risking freedom of information.

Cutting through the Clutter
As digital platforms speed up the digitization of news content and increase its accessibility, users are increasingly using services like Facebook Newsfeed to access news articles from traditional media companies. While some platforms, like YouTube, offer revenue sharing arrangements with video content creators, articles from news publishers’ websites have no such system. Online platforms use these articles to collect viewership data for targeted advertising. Critics have raised concerns about Facebook and Google monopolizing digital advertising to preferentially promote and advertise their own products and services.

Nevertheless, the Code’s ability to resolve the advertising revenue gap and monopoly of digital platforms remains unclear. ��Advertisers prefer online promotions, especially on big social media platforms, because of their high viewership. The argument that Google and Facebook’s large userbase and consequent online advertisement income is only from sharing news items from other media organizations seems untenable. Both companies attract viewership using various internet-related services, such as social networking, private messaging, personal content sharing, web searches, and cloud storage, which make them desirable for advertising.

The Code is currently silent about calculating the quantum of financial payment to news companies during negotiations. Would they receive a percentage of online advertising revenue or a fixed rate for each click on their articles? Without clear standards for calculating revenue sharing, digital platforms can justify unfair pay structures. If a stalemate goes to arbitration, only then would an arbitrator, under , apply specific criteria: namely, the ways in which digital platforms benefit from making content from news companies available, the reasonable costs which news companies and digital platforms incur, and preventing an undue burden on digital platforms.

Current Status
The Australian Parliament tabled the in December 2020 and, after both Houses considered the Bill, Parliament passed it on February 25, 2021. Facebook, in protest, its news sharing services. Facebook later restored its news pages upon reaching an with the Australian Government that included giving digital platforms two months to negotiate a deal with news companies before triggering mandatory arbitration.

Ripples in other countries, including Canada
Digital platforms are anxious about other countries introducing similar regulations. Facebook already ��pays licensing fees to news outlets in the and recently agreed to do the same in the . The report remarks that “the digital duopolies’ [read Facebook and Google] combined share of the online advertising market reached 80%.” Steven Guilbeault, , recently opined that Canada should introduce similar regulations. Facebook responded sharply, with its Canada Public Policy Head, , saying “…we’re unable to accommodate” such payments.

Looking Forward
Undoubtedly, digital platforms imminently need to maintain fair competition, advertisement verification, unbiased news feed algorithms, journalistic support and independence, and equal online advertising opportunities. While digital platforms should not monopolize internet freedom and access to information, or avoid paying news creators their fair share, they need clear revenue-sharing and anti-competition standards. No government can correct the disquietude on Facebook and Google’s rising monopoly or strong market control by forcing commercial, revenue-sharing deals with news outlets. Counterintuitively, increased regulation, such as this Code, would create entry barriers for nascent digital news-sharing platforms who might lack the fiscal bandwidth to enter commercial arrangements with large news publishers. Governments should also focus on promoting competition by supporting agile, smaller digital service providers and social media companies.

Gurbir Sidhu is an IPilogue Contributing Editor and LLM candidate at Osgoode Professional Development.

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The Nature of the Lawsuit

There exists little doubt about the extent of Google’s current reach in the digital markets. It currently stands as one of the wealthiest companies in the world, with a market value of $1 trillion. It brought in $162 billion in revenue last year, and has accounted for just under . The Department of Justice’s lawsuit against Google is one that is expected to potentially drag on for years to come, and “” with regards to remedies, according to associate deputy attorney general, Ryan Shores. Specifically, the government seems to be pushing for “”, which could involve the selling and/or cessation of portions of the company’s business.

The suit is the product of about that U.S. officials began last summer into Google’s advertising practices. The inquiry then rapidly expanded to encompass search monopoly allegations after the emergence of several complaints from rival tech and media companies. In response, the Justice Department has decided to once again enforce the , an antitrust law regulating enterprise competition that the government has previously used on a number of occasions in the past to combat notable companies in the , , and industries.

Anticompetitive Conduct and the Potential Harms

The Justice Department claims that Google locks up digital channels of distribution by implementing a string of with manufacturers and distributors such as Apple, LG, Motorola, Samsung, AT&T, T-Mobile, Verizon, Mozilla, Opera, and UCWeb. These contracts include anti-forking agreements that constrain manufacturers and distributors to remain in relation with Google, pre-installation agreements for premium placement of Google products, and revenue-sharing agreements in exchange for preset, default search engine privileges. For instance, the company has to be the default search engine on Apple’s products. The two tech giants are indeed - last year, about 50% of Google’s search traffic came from Apple devices, while Google annually pays Apple billions of dollars for the privilege of exclusivity, its payments making up approximately 15 to 20% of all Apple’s profits.

There are a number of reasons why antitrust laws are in place, and why exclusionary and anticompetitive conduct on the part of big tech companies is discouraged. It can harm competition and stunt technological innovation by denying established rivals and emerging startup companies the necessary channels and recognition to compete effectively in the market. The government also alleges that because it diminishes choice and lowers the quality of search services, especially with regards to consumer privacy and data protection. Moreover, the company’s monopoly over the online advertising market allows them to charge higher rates than they would be able to in a competitive market, thereby reducing the quality of the services that Google must provide to .

In Google’s Defense…

Shortly after the announcement of the U.S. government’s lawsuit, Google’s chief legal officer Kent Walker published a response on the company’s website, calling the claim “”. On the company’s behalf, he insists that consumers “use Google because they choose to, not because they’re forced to, or because they can’t find alternatives”, and goes on to demonstrate the ease with which users can set up their search engine of choice or alter their default settings. Walker argues that the suit would artificially bolster lower-quality search alternatives, hike up phone prices, and inconvenience users in getting to the search services they want to use. Furthermore, while the government seems to think that Google competes exclusively with other general search engines, the company upholds that in practice, people find information through a variety of mediums, thereby expanding the competitive landscape to include such rival companies as Twitter, Instagram, Pinterest, and Amazon.

Other critics have questioned whether the timing of the suit might be politically-motivated, seeing as how the federal government and Attorney General William P. Barr allegedly (against the recommendation of some government lawyers) by the end of October, just weeks ahead of the 2020 presidential election. It might also be noteworthy that all eleven of the state attorneys general that have currently signed on to support the lawsuit , and that President Trump has previously criticized tech companies like Google and other widespread media platforms for politically leaning towards the left. However, both conservative and liberal leaders alike have denounced the lack of regulation over big tech in the past, and concerns that arise in the meantime regarding any political undertones within the lawsuit remain as speculation.

“Whether led by Donald Trump or Joe Biden, the next administration should think systematically and comprehensively about the power of tech companies and what needs to be done about it.” - Bill Baer, ��

Conclusion

Judging from the parallels between the present case and the Justice Department’s , it is clear that this development is only the start of something much bigger. Colorado, Iowa, Nebraska, and New 91��ɫ state governments have asserted that they are still investigating Google’s business practices, and may sign on with the other state attorneys general in supporting the case at a later date. Regardless of what the court decides, the stakes remain considerable - either a potential restructuring of one of the world’s biggest digital empires, or a huge hampering of the government’s efforts in enforcing antitrust laws onto the big tech companies that it's been battling for years.

Emily Xiang is a first year JD candidate at Osgoode Hall Law School. She is an IPilogue editor and a 1L executive for the Intellectual Property Society of Osgoode.

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