Google Agreement Sets a Bad Precedent of Special Treatment, Says FTC Commissioner
The U.S. Federal Trade Commission’s search settlement with Google today “creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the Commission,” wrote Commissioner J. Thomas Rosch in a dissenting statement.
That’s both because he doesn’t think Google violated antitrust laws and because he doesn’t think the non-binding search agreement Google made has any teeth.
Rosch’s pithy take: “In other words, after promising an elephant more than a year ago, the Commission instead has brought forth a couple of mice.”
Rosch, a Republican who is known as a bit of a lone-wolf thinker, is on his second-to-last day at the agency, as his replacement was confirmed earlier this week.
Rosch voted along with the rest of the five commissioners to close their search investigation and with the majority to discipline Google on standards-essential patents. But he abstained from voting for Google’s voluntary settlement agreement and a statement on the patent matter.
By stretching to catch Google on something — anything — the FTC reached too far, Rosch argued. The two issues the FTC convinced Google to back down on are scraping content to display in search “snippets” and allowing AdWords users to manage their ad campaigns across multiple platforms.
But scraping could quite easily be seen as an issue of fair use. The search agreement puts “the FTC in the position of becoming the enforcer of the copyright laws on the Internet — a task for which it has neither the resources nor expertise, and was surely not envisioned by Congress,” Rosch said.
As any casual user of the Internet knows, many websites make use of other websites’ content; indeed, the business model for many popular websites is based on aggregating or summarizing the content of other websites. As a result of the majority’s apparent condemnation of scraping, the legality of these aggregators may be called into question, and the Commission may be inundated with rent-seeking complaints from firms like the alleged “victims” here.
Rosch had previously expressed skepticism about Google’s competitors trying to get the FTC to fight their battles. He told Bloomberg, “They can darn well bring it as a private antitrust action if they think their ox is being gored instead of free-riding on the government to achieve the same result.”