The abrupt resignation of Michelle Lee as head of the U.S. Patent and Trademark Office, completes the Trump Administration’s housecleaning of Google’s government guardians in the Executive Branch, that apparently were dutifully placed to watch over Google’s commercial interests in all the Federal policy and enforcement offices of most commercial importance to Google from 2012-2016.
Ms. Lee’s resignation is relevant to this blog and to Google’s going forward antitrust risk in the U.S., because Ms. Lee played a leading role in the FTC’s abrupt and chaotic closure of all Google FTC antitrust investigations January 3, 2013, shortly after the 2012 election.
Examining her role is relevant to determining if Google’s alleged antitrust violations were dismissed legitimately on the facts and legal merits, or because of improper Google political interference in a law enforcement matter.
Another reason for this piece, is I was the first observer to spot and chronicle Google’s de facto takeover of the tech, antitrust, and IP policy apparatus of the Federal Government in the second term of the Obama Administration, after Google was publicly credited with successfully helping the 2012 Presidential Reelect campaign. Please see here for the public evidence of Google’s reported central campaign role: Bloomberg, Stuff.com.nz, Bloomberg, Built in Chicago, Time Magazine.
What screams that these Obama political appointees’ real purpose was being Google’s government guardians, was that after the November Presidential election, all of Google’s government guardians quickly and oddly publicly offered, and lobbied the Trump-Pence transition, to stay on with the Trump Administration, when none of them needed a job, and all politically opposed President Trump’s policy agenda.
The best evidence that the former Google executives and top outside Google counsels were indeed successfully looking out for Google’s interests first was what happened before and after their arrival in the government.
In a nutshell, before Google placed their government guardians exactly where they wanted them in the USPTO, FTC and DOJ Antitrust Division, those offices were strictly enforcing the law against Google. After they were “on the job,” those entities effectively ceased and desisted on Google enforcement matters and then advanced very Google-friendly policies and actions.
For those who want to dig deep into the evidence of how the U.S. Patent Office outcomes changed dramatically in Google’s favor after Ms. Lee, who was Google’s Deputy Counsel for Patents from 2003-2012, took over the USPTO; and how antitrust outcomes completely changed in Google’s favor after Ms. Renata Hesse, a top outside antitrust counsel to Google at Wilson Sonsini from 2008-2011, joined the DOJ Antitrust Division, please see here, here, here, and here.
Why is this relevant now?
President Trump’s nominee for Head of the DOJ Antitrust Division, Makan Delrahim, was just approved 19-1 in the Senate Judiciary Committee, so he almost certainly will be confirmed by the full Senate, and most likely in June.
Those still expecting that Delrahim’s DOJ Antitrust Division will cede core antitrust jurisdiction over Google to the FTC are: 1) ignoring that Mr. Delrahim’s antitrust specialty professionally and as a law professor is intellectual property -- patents and copyright; 2) ignoring that Google is widely recognized as the western-multinational most hostile to intellectual property in the U.S. and around the world; 3) ignoring that two top former Google antitrust and IP legal counsels, were the two government decisionmakers that ripped a potential DOJ Google Standard Essential Patent (SEP) antitrust enforcement matter away from DOJ and used it as the pretext and political cover for the FTC to abruptly shut down, not only the DOJ’s Google SEP concerns from its review of the Google-Motorola acquisition, but also all the FTC’s search, search advertising, and Android tying cases; and 4) finally ignoring that the unprecedented and special mechanism that Google and the FTC used to settle the SEP matter was rejected as flawed, unenforceable, and not a precedent to ever be repeated, in part because Google did not have to admit any wrongdoing (sound familiar?).
Mr. Delrahim can’t help to appreciate that the FTC’s shut-down of all Google antitrust matters in January 2013, was anything but a total mess and a political sham, that only smells more as time passes.
While the DOJ and FTC looked the other way from 2012-2016, Google anti-competitively contractually tied their dominant search to its Android operating system to extend its desktop search syndication, and search advertising syndication dominance, to the mobile search syndication and search advertising syndication markets. This Google behavior, is highly analogous to the monopolization behavior that Microsoft did in the 1990s, that prompted a successful monopolization court case and consent decree, of which Mr. Delrahim was a close Senate overseer in his role as Counsel to the Senate Judiciary Committee at that time.
Simply, this political pass the FTC gave Google did not have a benign effect on competition, it had the opposite, and immensely destructive effect on competition, because it allowed Google to rapidly and broadly extend and consolidate its search monopoly through much of the Internet ecosystem. For copious evidence of this metastasis of market power, please see here, here, here, and here at my www.Googleopoly.net site.
Mr. Delrahim is inheriting a big antitrust-IP-infringement mess that Google’s guardians, Michelle Lee Renata Hesse, and others left stinking on his doorstep.
And the plot thickens more because Google Android anti-competitively infringed Oracle’s Java copyrights to seize an anti-competitive Android OS first mover and cost advantage, and that enabled Google to extend its search monopoly into the physical world of devices via Android.
Moreover, Google Guardian Hesse, apparently looked out for Google’s interests in shortchanging copyright compensation to the music industry, which is not surprising because the Hesse-Baer-Hesse DOJ Antitrust Division also has ignored how Google has engaged in willful blindness to YouTube’s mass infringement of video copyrights.
In addition, like any IP/copyright expert, Mr. Delrahim must be keenly aware of how Google is trying to bend copyright law and enforcement to Larry Page’s will with manipulating the personnel process of the appointment of the next Copyright Register in the Library of Congress, just like former Google Deputy General Counsel for Patents, Michelle Lee, helped bend patent law to Larry Page’s will with the U.S. Patent and Trademark Office during Ms. Lee’s four years there. Mr. Page understands the old adage that personnel is policy.
To see the patterns of Google behavior that has enabled it to perfect anti-competitive IP infringement – see: “Stealing from Competitors is How Google Works” here, and “Google’s Infringenovation Secrets” here.
Lastly, it is fortunate that America’s top antitrust enforcer, Mr. Delrahim, has an antitrust specialty of intellectual property, because America’s biggest monopolization problem, Google, is also America’s biggest IP infringement problem.
Forewarned is forearmed.
***
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and before the relevant House oversight subcommittee on Google’s privacy problems.
Google (& Facebook) Antitrust Series
Part i: Why Did Google & Facebook Stop Competing with Each Other? [8-3-16]
Part ii: Google’s Information is Power, Info-poly Power [9-18-16]
Part iii: What No Bids for Twitter Tell Us about Google-Facebook & Online Advertising [10-21-16]
Part iv: Five Worst Google Antitrust Decisions [11-4-16]
Part 1: America’s Indefensible Media Concentration Double Standard [12-5-16]
Part 2: The Google-Facebook Online Ad Cartel is the Biggest Competition Problem [1-12-17]
Part 3: Twitter & Snap Evidence Confirm Goobook Ad Cartel Crushing Competition [2-15-17]
Part 4: Look What’s Happened Since the FTC Stopped Google Antitrust Enforcement [3-13-17]
Part 5: Google Antitrust Implications of Makan Delrahim as DOJ Antitrust Chief [3-28-17]
Part 6: Trump Administration Implications for Google Antitrust in EU, US & Markets [4-7-17]
Part 7: 6 Reasons Trump DOJ Will Take Lead from FTC in Google Antitrust Enforcement [4-13-17]
Part 8: Google-Russia Antitrust Deal Has Big Implications for EU Cases, Trump DOJ [4-19-17]
Part 9: Google Takeaways from Trump Antitrust Chief’s Senate Confirmation Hearing [5-11-17]
Part 10: New Evidence Google Facebook Ad Cartel Crushing Competition Market Failing [5-18-17]
Part 11: Alphabet-Google Big Takeaways from Trump Antitrust Chief’s Senate Answers [6-1-17]
