DOJ vs 米Google レメディ意見書で読み解く検索シェア90%の壁と『スケール・アドバンテージ』の構造

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Introduction [...]

For more than 15 years, one general search engine has stood above the rest: Google. The brand is synonymous with search. Once a scrappy start-up founded by two Stanford University students in a rented garage, Google is now one of the world’s most valuable companies. Its parent company, Alphabet Inc., today has a market capitalization (the value of its outstanding shares of stock) of more than $2 trillion. Much of that value is due to Google’s extremely profitable advertising business.

Google’s dominance has gone unchallenged for well over a decade. In 2009, 80% of all search queries in the United States already went through Google. That number has only grown. By 2020, it was nearly 90%, and even higher on mobile devices at almost 95%. The second-place search engine, Microsoft’s Bing, sees roughly 6% of all search queries—84% fewer than Google.

Google has not achieved market dominance by happenstance. It has hired thousands of highly skilled engineers, innovated consistently, and made shrewd business decisions. The result is the industry’s highest quality search engine, which has earned Google the trust of hundreds of millions of daily users.

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24． Google’s share of search queries on mobile devices was even higher at 94.9% in 2020. Id. at 4762:19–4763:2 (Whinston) (discussing UPXD102 at 49); see also UPX476 at 668 (Google’s internal share calculation of 98% of mobile GSE queries in 2019). The percentage on desktop devices was 84%. See UPX476 at 668. The second-place search engine, Microsoft’s Bing, sees roughly 6% of all search queries—84% fewer than Google. Id. at 4761:12-14 (Whinston) (discussing UPXD102 at 47). Bing (5.5%), Yahoo (2.2%), DDG (2.1%), and other rivals (0.9%) together see less than 11% of all queries. Id. Their numbers are even lower on mobile devices. Id. at 4762:19–4763:2 (Whinston) (discussing UPXD102 at 49) (Bing (1.3%), Yahoo (2.1%), DDG (1.5%), and others (0.2%)). Bing’s market share has never risen above 12%. See id. at 4762:4-12 (Whinston) (discussing UPXD102 at 48). Bing sees more desktop queries than mobile queries because it has greater distribution on Windows desktop devices, where it is the default GSE on the preloaded Edge browser. See id. at 3096:14-18 (Tinter).

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86. Early on, Google understood that the information gleaned from user queries and click activity were a strong proxy for users’ intent and that such information could be used to deliver superior results. See UPX251 at 870 (“[M]ost of the knowledge that powers Google, that makes it magical, ORIGINATES in the minds of Google users.”); id. at 871 (“As people interact with the search results page, their actions teach us about the world.”); UPX203 at 906 (“If a document gets a positive reaction, we figure it is good. If the reaction is negative, it is probably bad. Grossly simplified, this is the source of Google’s magic.”).

Greater query volume means more user data, or “scale.” As the most widely used GSE in the United States, Google receives nine times more queries each day than all of its rivals combined across all devices. The disparity is even more pronounced on mobile. There, Google receives nineteen times more queries than all of its other rivals put together. See Tr. at 4761:6-24, 4762:19–4763:2 (Whinston) (discussing UPXD102 at 47, 49).

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37. A noncommercial query is one in which the user seeks to retrieve information that the GSE does not attempt to monetize by delivering a search advertisement. 80% of Google’s queries are noncommercial in nature. Id. at 8396:16–8398:17 (Israel); UPX10 at 053 n.6.

Commercial queries, as the name implies, are queries that the GSE perceives are an expression of commercial intent by the user and constitute the remaining 20% of Google’s queries. Tr. at 8396:16–8398:17 (Israel); UPX10 at 053 n.6. Typically, such a query seeks information on a product or a service. GSEs often serve advertisements on a search engine results page in response to a commercial query. See infra Section V.A.1. Like Google, only about 20–30% of Bing’s queries are commercial and show ads. Tr. at 3645:13–3646:2 (Nadella).

Navigational queries, which can be either commercial or non-commercial, are a type of query that reflects a user’s intent to navigate directly to a particular website. Id. at 185:11-19 (Varian). GSEs may or may not serve ads on a navigational query. An example of a navigational query is “Amazon,” which may express the user’s intent to go to Amazon.com. See id. at 8721:12-13 (Israel) (“[O]ne use of a general search engine is as this vehicle to take me to other sites.”). Users often enter navigational queries. In fact, at a given time, Google’s top five queries by query volume are navigational queries, UPX342 at 859, and nearly 12% of all Google queries are navigational queries, Tr. at 8748:22–8749:1 (Israel) (calculation reflected in Whinston Expert Report at 64); id. at 8748:25–8749:1 (Israel) (the volume of navigational queries is “significant”). Navigational queries are unique to GSEs, because only a GSE’s results page supplies a user with organic links used to navigate to another website. See id. at 4616:23-25 (Whinston) (specialized vertical providers are “not sending you off to other sites” because “they don’t have a broad index of the web”); see infra Section IV.A.

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35. Many users begin their online information gathering journeys on GSEs. An analysis by U.S. Plaintiffs’ expert Dr. Michael Whinston found that 77% of search sessions on Windows desktop devices began on GSEs. Id. at 4614:12-24 (Whinston). That 77% figure is arguably lower on mobile devices, on which users are more likely to start searches directly within an application instead of a GSE. See id. at 5875:19–5876:9 (Whinston). 36. There are two general types of queries on GSEs: noncommercial and commercial.

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33. A GSE can supply information from a broad variety of sources, covering nearly any topic. Tr. at 8708:16-20 (Israel) (agreeing that GSEs “can handle virtually any type of query”). Thus, it is “the first place that you can turn to,” and “a place that you go to for the vast majority of your information needs.” Id. at 3670:6-18 (Ramaswamy); see also id. at 6511:11-23 (Whinston) (same); id. at 7027:23-25 (J. Baker) (“[A] general search user can get satisfactory responses to multiple queries from multiple sources, all without switching sites.”); id. at 10471:17-25 (Oard) (“[M]ental process is costly and . . . people may just not know about where things are.”); cf. id. at 8717:17-18 (Israel) (“If I don’t know the best source, I may have to try various ones.”).
34. Google classifies its queries by subject matter, and it has developed more than two dozen “level-one” classifications. Id. at 7029:2-16 (J. Baker) (discussing PSDX11 at 17). Users tend to use a GSE for a short period of time to search for a particular topic and then allow time to pass before using a GSE to search for a different topic. Put differently, users do not typically search multiple different subject matters during an unbroken time period. Id. at 8419:9-15 (Israel) (discussing DXD29 at 25) (78% of users searched within only one vertical in a short period). Yet, if viewed over a longer period, users frequently turn to GSEs to search for a broad variety of topics. See id. at 7029:17–7031:11 (J. Baker) (discussing PSXD11 at 19) (showing based on Google sessions data from 2019 and 2021 that nearly 65% of “sessions,” defined in the study as a 24-hour period, involved users searching in more than one classified segment).

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62. Notwithstanding the option to switch, the default remains the primary search access point. Roughly 50% of all general search queries in the United States flow through a search access point covered by one of the challenged contracts. See id. at 5755:6-11 (Whinston) (discussing UPXD104 at 34–36). Of that 50%, 28% of those queries are entered into search access points covered by the Google-Apple Internet Services Agreement, 19.4% through Google’s agreements with Android OEMs and carriers, and 2.3% through search access points on third-party browsers, such as Mozilla’s Firefox. See id.

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63. Another 20% of all general search queries in the United States flow through user-downloaded Chrome, which defaults to Google. Id. at 5762:22–5763:13 (Whinston) (discussing UPXD104 at 37).

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64. Thus, only 30% of queries in the United States run through a search access point that does not default to Google. See id. at 5762:22–5763:13 (Whinston) (discussing UPXD104 at 37). (To be clear, those 30% of searches are not all run on GSEs other than Google. A large percentage of those searches still are entered into Google, but through channels other than the default search access points, such as user-downloaded Google Search app or a search on www.google.com.)

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89. Another type of user information is query data. GSEs accumulate query data to, among other things, learn what information users are looking for. Google’s scale means that it not only sees more queries than its rivals, but also more unique queries, known as “long-tail queries.” To illustrate the point, Dr. Whinston analyzed 3.7 million unique query phrases on Google and Bing, showing that 93% of unique phrases were only seen by Google versus 4.8% seen only by Bing. On mobile, where Google has more scale, the disparity was even higher. See id. at 5785:12– 5788:1 (Whinston) (98.4% of unique phrases seen only by Google, 1% by Bing; 99.8% of tail queries on Google not seen at all by Bing) (discussing UPXD104 at 44).

Google has used its scale advantage to improve the quality of its search product. At every stage of the search process, user data is a critical input that directly improves quality.

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63. GenAI products may be having some impact on GSE usage. See Rem. Tr. at 3818:20–3819:4, 3827:23–3828:11, 3846:25–3847:3 (Cue) (testifying that the volume of Google Search queries in Apple’s Safari web browser declined for the first time in 22 years perhaps due to the emergence of GenAI chatbots). But GenAI products have not eliminated the need for GSEs. PXR0176 at -123 (“ChatGPT already expanded what is possible for parts of Search, but users don’t yet use ChatGPT for the full range of Search needs.”); Rem. Tr. at 648:2–649:21 (Hsiao) (testifying that Google tracks so-called “cannibalization” of Google Search by GenAI chatbots and the Gemini app is not diverting queries from Google Search to a significant degree today); id. at 3846:25–3847:17 (Cue) (attributing the recent decline in Safari’s search volume to increasing usage of GenAI apps but recognizing these apps must improve to compete with Google Search); id. at 21:2-5 (Opening Arg.) (Plaintiffs’ counsel acknowledging that general search and GenAI “are different but overlapping products” and that GenAI “is not a replacement for [s]earch today); see also Google, 747 F. Supp. 3d at 53 ¶¶ 111, 114 (finding during the liability phase that “AI technologies have the potential to transform search” but “AI has not supplanted the traditional ingredients that define general search”).
64. AI Overviews has potentially strengthened Google’s position in the GSE market. Since its introduction, Google Search queries in the United States have increased 1.5 to 2%.

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But that quality improvement would translate to only a very modest shift in market share for Bing. In what the authors called a “more speculative exercise,” they estimated a change of roughly one percent based on “findings of modest economies of scale . . . and a weak demand response to quality improvements.” Id. at 36–37. The Allcott study, however, is limited in an important respect. The authors’ findings and modeling concerned “desktop search in browsers,” id. at 5, a platform on which Bing has default distribution and quality comparable to Google, Google, 747 F. Supp. 3d at 38 ¶ 26, 56 ¶ 127. Arguably, Bing’s quality would increase at a higher rate with more access to long-tail data on mobile, where Bing is far inferior to Google. See id. at 38 ¶¶ 24–25 (describing Bing’s 1.3% share of search queries on mobile compared to Google’s 94.9% share). That could produce a larger overall share shift in favor of Bing.