FTC/Google Settlement: Covers Patents, Advertising; No Actionable Search Bias

The FTC has reached a proposed settlement with Google regarding multiple antitrust-related claims. The FTC's investigations covered issues including Google's control over key patents after its Motorola Mobility acquisition, Google's policies regarding cross-platform advertising campaign management, and allegations of so-called "search bias" through which Google was supposedly favoring its own content in its search results over competitors' pages.

With regard to search bias, the FTC found:

...that the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification. Rather, we conclude that Google’s display of its own content could plausibly be viewed as an improvement in the overall quality of Google’s search product. Similarly, we have not found sufficient evidence that Google manipulates its search algorithms to unfairly disadvantage vertical websites that compete with Google-owned vertical properties....

The FTC did, however, find some evidence that Google may have unfairly "scraped" competing Web sites' content for its own use and threatened to delist those that protested, and may further have placed "unreasonable restrictions" on advertisers' abilities to advertise on Google and competing search engines at the same time. Google agreed to refrain from both types of practices in the future.

Google additionally agreed to make certain changes in its patent and advertising practices. The FTC found that Google had blocked willing licensees of its patents from making deals on so-called fair, reasonable and non-discriminatory ("FRAND") terms, including through use of injunctions; in the settlement, Google agreed not to pursue such injunctions against those with whom Google had previously agreed to FRAND terms:

Google also agreed to alter elements of the contract terms covering the use of its AdWords API (application programming interface), which impeded advertisers' efforts to better manage and control their ad campaigns both within and beyond Google and its properties.

The FTC's proposed consent agreement with Google is subject to public comment through February 4th, 2013, in hard copy or online. The release (with links to the relevant documents, including dissents) may be found on the FTC's Web site.