The current complaint from the Department of Justice (DoJ) against Google is touted as the most significant antitrust enforcement case since Microsoft in the 90s. Parallels between the two cases are easy to point out based on structural similarities of the companies and the DoJ complaints. However, focusing on corporate structure rather than the consumer would be a disservice for enforcement and punishment. 

In both cases the complaint largely centers around exclusivity agreements, which can vary greatly but generally involve either preferential treatment or the exclusion of competitors. Despite surface similarities, the agreements perfectly show that form doesn’t determine function. While both complaints use the term exclusive when discussing the agreements, they mean different things. In the Microsoft case, exclusive meant exclusive, while Google only means preferential.  

The agreements with original equipment manufacturers (OEMs) who make the physical products, and Microsoft included bundled services such as the operating system and the web browser Internet Explorer and rules regarding the boot-up sequence that users would see. This is comparable to the Google case, where OEMs using the Android operating system agree to follow certain design restrictions, including prime placement for other Google applications and services.  

Where these agreements vary dramatically is their extent. According to the prior DoJ complaint against Microsoft, agreements with internet service providers included rules that barred mentioning competitors and even design requirements that would display content better on Internet Explorer than competing products. Furthermore, the agency argued that Microsoft intentionally updated Windows 98, so it was more challenging to remove Internet Explorer than the Windows 95 version.  

Comparatively, the crux of the Google complaint is agreements between Google and OEMs to make its browser the default setting for electronic products. For user experience and competition, the differences are dramatic, as the default settings can be easily changed. 

The ease of switching away from Google’s products should support the idea that consumer preferences at least partly drive Google’s dominance. In the Microsoft complaint, there weren’t documented cases of consumers truly preferring their products to the extent that Google has shown. 

As of 2021, “google” was the top searched term in Bing worldwide, and the third-highest search term in the U.S. Google can compete on its merits, and default placement of its products benefits consumers without locking them in. This starkly contrasts with the Microsoft case, where bundled services were used to avoid competition in the browser marketplace. 

The Google and Microsoft cases don’t just show why a similar structure doesn’t result in a similar impact; it also makes a strong case against the push by the DoJ for structural rather than behavioral remedies.  

The DoJ is not the only agency focused on structure. Structural presumptions of competitiveness are present throughout the newly proposed merger guidelines and within the written work of the Federal Trade Commission’s Chair, Lina Khan. The presumption of structural significance becomes even more concerning when applied to the remedies of demonstrated harm.  

Tim Wu is a strong voice in the current movement meant to reinvigorate antitrust, specifically focusing on firm size and Big Tech. In his book The Curse of Bigness: Antitrust in the New Gilded Age, he focuses on firm or market share size and supports structural remedies. In praise of this work, Khan wrote that he “implores enforcers to recover corporate breakups as a mainstay antitrust remedy.” 

If the push towards structural remedies we see today had prevailed in the Microsoft case, consumers would have lost out. Despite the DoJ winning its case against the company, Microsoft did not have to separate its operating system from the rest of the business.  Ultimately, the agency reached an agreement that relied on behavioral adjustments to prevent the illegal behaviors.  

Today, neither search nor the Windows operating system are the biggest portions of Microsoft’s business. Instead, the company continues serving its consumers in those segments while offering new products and services. Something that may not have been feasible if they had been forced to restructure. 

Presumptions of the inherent effects of corporate structure throughout the antitrust process are flawed, from guidelines to complaints to remedies. Microsoft illustrates this perfectly. Comparing Google to Microsoft based on similarities in business models ignores the behavioral differences that reveal strong consumer preferences in the case of the former. Additionally, even in cases of wrongdoing, such as Microsoft, structural remedies risk throwing the baby out with the bath water. The push towards a structuralist approach to antitrust enforcement negates actual consumer benefits.  

Tirzah Duren is the Director of Tech Policy at the American Consumer Institute, a nonprofit educational and research organization. You can follow her on Twitter @ConsumerPal.