Talking (Antitrust) Turkey With DCN’s Jason Kint

Summary

AdExchanger Podcast Summary

Episode: Talking (Antitrust) Turkey With DCN’s Jason Kint
Host: Alison Schiff
Guest: Jason Kint, CEO of Digital Content Next
Release Date: November 26, 2024

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Introduction

Alison Schiff welcomes Jason Kint, CEO of Digital Content Next (DCN), to discuss the ongoing antitrust proceedings against Google. Both Schiff and Kint attended the closing arguments in Alexandria, Virginia, for the case US v. Google, which examines whether Google maintains a monopoly in the online advertising industry.

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Jason Kint’s Background

At [03:52], Kint shares personal anecdotes about his early career delivering newspapers and an unconventional job involving Velcro wall jumping. These experiences, he muses, metaphorically shaped his career in media and publishing.

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Choosing Twitter as a Platform

During [05:21], Alison inquires why Kint prefers Twitter (now known as X) for sharing his insights, given its evolving environment. Kint responds that Twitter remains a hub for public policy discussions, journalists, and industry professionals. He also mentions exploring Blue Sky as a complementary platform to enhance his communication efforts.

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Overview of the DOJ vs. Google Case

[07:24] Kint provides an elevator pitch of the DOJ’s case against Google:

• Monopoly Power: Google allegedly holds monopoly power in both buying and selling advertising tools, particularly in open web display advertising.
• Abuse of Power: The DOJ accuses Google of illegally tying different elements of its ad tech stack, preventing competitors from accessing the market.

He contrasts this with Google’s defense, which argues that the market is a two-sided marketplace and that their practices are not anti-competitive but rather a necessity to compete with rivals.

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Judge Brinkama’s Role and Observations

Alison discusses Judge Leonie Brinkama’s interactions during the trial, noting her critical remarks and evolving perspective on Google's defense arguments. Specifically, she references how Judge Brinkama initially likened the case to Ohio v. Amex but later questioned the validity of this comparison when distinguishing the complexities of programmatic ad auctions ([10:08]).

Kint interprets this shift as a sign that the Judge may not find Google's defenses persuasive, especially regarding their use of the Amex argument.

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Impact of Judge Brinkama's Comments

During [15:59], Alison brings up Judge Brinkama’s question to the DOJ about why they didn't call advertiser witnesses, to which Kint responds that finding willing and competent marketers to testify against Google is challenging. Additionally, he highlights concerns about the credibility of Google's witnesses, many of whom are funded or affiliated with Google.

Kint also touches upon spoliation issues, where Google was found to have improperly handled evidence across multiple antitrust cases. He suggests that Judge Brinkama may criticize Google's actions but might refrain from imposing strict sanctions to avoid complicating appeals ([30:54]).

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Potential Outcomes and Industry Impact

Alison prompts Kint to discuss the ramifications of either outcome:

• If Google Wins: Kint warns that Google could continue consolidating its control over the ad tech ecosystem, further restricting competition and harming publishers and advertisers alike ([38:46]).
• If Google Loses: The primary focus would shift to implementing effective remedies to dismantle Google’s monopolistic practices. Kint emphasizes the importance of remedies that address both buying and selling sides of the ad tech market to restore competition.

He also notes that even a loss for Google could lead to short-term challenges for publishers as they adapt to a restructured ad tech landscape.

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Judge Brinkama’s Potential Remedies

Alison inquires about possible remedies, specifically the spin-off of Chrome as suggested in separate antitrust cases. Kint explains that separating Chrome from Google could significantly disrupt Google's data collection and advertising strategies, further weakening its market dominance ([42:49]).

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Future of Antitrust in Ad Tech

Kint reflects on the broader implications of the case, stressing the critical role of data in maintaining market power. He advocates for stricter constraints on data collection and usage to prevent monopolistic practices, suggesting that such measures would have curtailed Google's dominance over the past decade ([45:41]).

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Personal Reflections and Closing Thoughts

In the concluding segment, Kint shares his gratitude for his family and the support from the media and entertainment industries in their decade-long fight against Google's monopolistic practices. Alison reciprocates the gratitude, extending holiday wishes and thanking listeners.

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Key Quotes

• Jason Kint on Market Dominance:
  “[...] Google has monopoly power in the tools for buying advertising, monopoly power in the tools for selling advertising, and has abused that market power by tying two of those elements together.” [07:24]

• Judge Brinkama’s Influence:
  “She used the words like it was attractive at first, and it became a lot less attractive the further she read it.” [11:15]

• Impact of a Google Victory:
  “They’re going to continue to meet their earnings obligations and have to extract that revenue from elsewhere, which harms everybody else.” [38:46]

• On Data and Antitrust:
  “I would put significant constraints on the ability to collect and use data across parties back a decade ago.” [45:41]

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Conclusion

The episode provides an in-depth analysis of the DOJ's antitrust case against Google, highlighting the potential consequences for the ad tech ecosystem. Jason Kint underscores the necessity of robust antitrust enforcement to ensure a competitive and fair market landscape for publishers and advertisers alike.

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Note: Advertisements and sponsor segments from Activision Blizzard Media were excluded as per request.

Transcript

[Jason Kint]

Foreign welcome to Ad Exchanger Talks, the podcast devoted to examining the issues and.

[Alison Schiff]

Trends in advertising and marketing technology that matter most to you.

[Sarah Sleus]

Let me tell you a bit about this month's sponsor. Activision Blizzard Media is the gateway for brands to the leading interactive entertainment company. Their legendary portfolio includes iconic game franchises like Candy Crush Saga, Call of Duty, Overwatch, World of Warcraft, and more, which together attract hundreds of millions of monthly active users worldwide.

[Alison Schiff]

I'm Alison Schiff and this year I'm thankful to all of our listeners. Thanks for sharing some of your precious time with us. So I traveled back down to Alexandria, Virginia for closing arguments on November 25th in US v. Google. A judge will soon decide whether Google operates a monopoly in the online advertising industry. Forgive my shameless plug, but I wrote up a rather long and hopefully also kind of fun story about my trip, which you can read on adxchanger, of course, with insights and takeaways from the closing arguments. So check it out. But I've also got some more analysis for you with my guest on this episode, Jason Kint, CEO of Digital Content Next. He's been all over the adtech antitrust case and the Search antitrust case, which is entering the remedy phase. Jason and I were both in the PACT courtroom to hear the closings and we'll share our impressions. But first, a few more shameless plugs. If you're not listening to our other podcast, the Big Story, you're missing out. It's a weekly roundtable discussion of, as the name denotes, the biggest stories or story of the week. And we're an amusing crew. So let us entertain you and inform you during your morning run or on your commute. And while you're at it, please also save the date for next year's CTV Connect March 12th and 13th in New York City, Ad Exchanger is joining forces again with Synopsys, Ad Monsters and Chief Marketer to host a Can't miss summit on all the key issues and opportunities in Connected TV. Learn more and [e-mail] hey Jason, welcome to the podcast.

[Jason Kint]

Hi, thanks for having me.

[Alison Schiff]

So I think most everyone knows who you are CEO of Digital Content Next. And you keep your finger right on the pulse of what's happening at Google and Meta, particularly recently. Recently from an antitrust perspective. And like, how does this impact publishers perspective? Because at DCN you represent publishers. It's a trade organization that has the interests of digital media companies in mind at heart. And you went to, I can now say, a bunch of anti antitrust cases because There have been a bunch. The recently decided search case against Google, which Google lost. You tweeted like a champ. And you were also there for a lot of the Google Adsec antitrust trial. And we were both there for the first week I saw you there. We ran into each other at closing arguments in Alexandria too. And we're gonna talk about that in detail. But all of that is to say that you're very plugged into all of this. You have a very strong point of view. We're gonna get into it like the nerds we are. Or I'll speak for myself, but I'm the nerd. But before we do, what's something about you that not a lot of other people already know?

[Jason Kint]

Not a lot of people know about me. Let's start with career path. I will say that I spent my first four years of work delivering newspapers. And so maybe that was my, my early entree into the world of media and publishing, how to get it to people. I'll also mention my second job was Velcro wall jumping. So I would bounce on a Velcro wall and stick upside down to demonstrate for amusement park place in high school. And so maybe the combination of delivering newspapers and then bouncing around off a Velcro wall was formative for my career.

[Alison Schiff]

That does feel metaphorical somehow, the Velcro.

[Jason Kint]

Wall and that' if I did that on the fly. So there you go. Go ahead.

[Alison Schiff]

So you, you've been an outspoken critic of Google across, you know, many media and platforms. But Twitter or X or whatever, it seems to be your preferred platform for sharing your opinions. And you've done a lot of, I can't say live tweeting from the trials because you can't really be live when you're not allowed to bring your phone into the courthouse, but as live as possible. I have to ask though, like, why Twitter? Why is Twitter your platform of choice? It feels like the vibe really different there these days. I mean, I still follow some cat related accounts to collect memes and cute videos, but that's pretty much all I use it for these days and to check out what you're saying.

[Jason Kint]

Yeah, no, I appreciate that. And, and maybe a little bit of breaking news. I am one of the, the folks that have been over on Blue sky quite a bit in the last month too. And it's really, for me it's, it's very work focused and it's a way to translate and communicate what's going on with, you know, things that aren't able to be covered very closely because of things like closed courthouses or you know, some people don't understand the business as closely and especially like in the legal profession maybe. And so, you know, I'm trying to help communicate out. And so it's where those people are. And Twitter is still where a lot of in the public policy world, a lot of people are still there, a lot of journalists are still there. I think that's changing. But you want to make sure you reach everybody if you can. So I think Twitter plus now Blue sky has been a little bit of a companion for me.

[Alison Schiff]

Yes, for our sins, we are still there. Okay, so Google Ad tech trial analysis time. The DOJ and Google's defense team, they made their closing arguments in USV Google, the ad tech edition on Monday. We're chatting now, we're recording this on Tuesday. So less than 24 hours later, it was 90 minutes apiece. And the judge in the case, the honorable, but also very funny I have to say. Judge Leonie Brinkuma, she had the opportunity to break in with comments and questions throughout, which she did. And I want to talk about a bunch of the things she brought up. The DOJ presented first about 70 minutes and then Google took its full 90ish minutes, maybe they went ever so slightly, 95, 95, no one's counting. And then the DOJ used the rest of its time to close out. So a little bit of a DOJ sandwich there. So as a little refresher and scene setter before we get into the details, what was the DOJ's case? In a truly nutshell sized nutshell and the same for Google's defense. Like the elevator pitch versions in the.

[Jason Kint]

Elevator pitch, this is the supply chain for how digital advertising gets distributed to from advertisers to publishers. And that Google has monopoly power in the tools for buying advertising, monopoly power in the tools for selling advertising and has monopoly power or approaching monopoly power. And the tools that do the live real time negotiations between the buyers and the sellers and the auctions and that they have abused that market power, including by tying, illegally tying two of those elements together. So that way you can't have one without the other. And that's the basics of it. And over, I think it's important to say over a certain type of digital advertising which has been described as open web display advertising. So this is the stuff that you can buy and sell that serves on the open web. It's not in the nap, it's not ctv, it's not, it's not video, it's not on a closed platform Like Snap or, or Instagram. And Google's main defense has been that that market is, you know, they use their term gerrymandered, that it's been invented and that the market itself isn't really three markets. It's something that's a technical term in antitrust world. It's a two sided market and that they haven't been illegally tying, but they're instead being forced to deal with their rivals, which is again another technical legal argument. But those are the main. I don't think they've tried to argue that they don't have market power, monopoly power, because the numbers speak for themselves.

[Alison Schiff]

Well, we got a little insight into how Judge Brinkema is thinking and how her thinking has evolved over the course of the trial. I mean she plays it pretty close to the vest, but there were some nuggets sprinkled throughout, some insights that we could gather from the types of questions that she was asking, some of the observations she shared. And I'm thinking specifically of how she says she's thinking of the Ohio v. Amex case now which you just referenced that 2018 Supreme Court decision and correct me if I'm wrong, so found that in a two sided marketplace you have to consider the outcome of behavior on both sides of the marketplace depending like the network effects. So if you do something that's good for one side and maybe not as good for the other, like is that anti competitive? Like in the Amex decision which was about the credit card market and credit card transactions, the answer is is no or was no. Is that right?

[Jason Kint]

That's right. It's a good simple explanation. Yeah, there's, there's buyers, sellers, it's one, it's one market that functions as a single transaction and it's necessary to have parties on both sides and you have to look at the collective net effect. That's right.

[Alison Schiff]

So Google used that as a cornerstone of its defense that the DOJ was only looking at one side of the market in isolation. And then during her closing, Karen Dunn, Google's attorney, she started talking about Amex and then Judge Brinkama broke in to say that she'd previously thought the Amex comparison with Google was a good, good one. But she's since changed her mind. I mean she didn't actually say the words changed her mind, but she did point out that a transaction in a credit card situation is two parties and a transaction in a programmatic ad auction is a totally different animal. And Amex doesn't feel as perfect of a comparison to her anymore. Or as it did at the beginning of the trial. So hearing the judge say that, what does that tell you? Like, what should that tell us?

[Jason Kint]

I think she used the words like it was attractive at first, and it became a lot less attractive the further she read it. And she'd read it a number of times, so it sent a signal to her that that probably wasn't going to be a winning defense with her. And I. I think that, frankly, that rattled Karen a bit because they were leaning hard into that. And, you know, the other kind of joke about going 95 minutes, but, you know, Google, like, with its opening remarks, just flat out ran out of time. She. It felt like she probably had 120 minutes of material to pack into that 90 minutes. And, you know, she asked for. For some grace, and judge couldn't come up very. You know, she was funny at times. She just snapped, five minutes. You got five minutes. And so there was a lot that wasn't covered. And I have to believe some of that was that she got sent off her rails, including with. With the AMEX point of view.

[Alison Schiff]

Yeah. I was furiously taking notes in my little notebook with my pencil, and I wasn't looking up. And Karen was presenting her closing, and all of a sudden it went quiet and she stopped talking like, oh, what happened? So I looked up and I realized that the judge had given the five minute warning. Yeah. And then Karen asked for her grace, and the judge just said five minutes. And there was laughter in the courtroom.

[Jason Kint]

It happened in pre. You know, the pre trial, too. Karen asked if she could have 45 minutes instead of 30. And the judge. No, you know, just a. Decided right in that moment within seconds. So she runs a tight courtroom. These are the rules to play by, and Google has to play by the same rules as everyone. And it's just interesting to watch. They. You. They clearly had a spaghetti. I can describe as spaghetti defense of just like throw things at the wall. And. And AMEX certainly wasn't seeming to stick. And so she shifted into more arguments. But there was a lot that came out in that. In that 90 minutes or 95 minutes.

[Alison Schiff]

And I know she wanted to talk about Project Poirot, the project to allegedly, quote, unquote, dry out header bidding. Because when she got her time warning, she had to flip through all of her slides to get to the very end. And I saw what looked like a big mustache on a comet on one of the slides. It rushed by. I'm like, oh, that must be Hercule Poirot.

[Jason Kint]

Hello. Au revoir. Yeah, Yeah. I mean, there are a Couple things that she did start to lean into, and I thought it kind of backfired, was, you know, Google, on behalf of Google, she leaned into that the just department had made a big deal about header bidding, but then never. Never had really brought it up in the. In the first 70 minutes. But then, you know, when they had the rebuttal afterward, they came in strong on. On header bidding and Google wanting to kill it, et cetera. And so. So a couple things she leaned into were she didn't really have a chance to go deeper. And I think Pro probably was one of the projects underneath there that just got. I mean, it felt like, you know, I think probably everybody's been in this situation where you've got a presentation you're making to a professor or in a classroom or whatever, and you. You run out of time and you're flipping through slides really quickly and. And it really kind of knocks you off your rocker.

[Alison Schiff]

A procedural question that I. I just don't know the answer to because this was my first ever court case that I've covered. So why was the setup that the DOJ got a chunk of time. A large chunk of time, then Google did its full closing, and then the DOJ got to wrap up with 20 minutes. Kind of get the last word. Is that the normal kind of setup?

[Jason Kint]

It is pretty, pretty normal. I don't know if it can be negotiated or changed, but you know that they get a chance to rebut the arguments and they have to reserve whatever time that they choose not to use. So it's pretty standard at various levels of court. So, yeah, so if they would have only used 30 minutes up front, then they would have had another probably 60 minutes to go in afterward. But there might be some limits on that. I think it really depends on the court.

[Alison Schiff]

Okay, got it. So, yeah, I want to talk about other things that Judge Brinkama said and that she asked and see if those little interjections give us any insight into where her. Her head is. So at one point, she asked Aaron Teitelbaum, the DOJ attorney who presented the first part of the government's closing, for examples of ad products that are better than Google's. And Aaron brought up Kevl and Aquatic, which are ad server companies that struggled to make a dent because arguably Google had sucked a lot of the. Or all of the oxygen out of the roo boom in that market. The fact that she asked that question, does that say anything to you?

[Jason Kint]

And I, I thought it was an interesting question. It said that she, you know, she A lot of this is how much has she written over of her opinion already? And is she just trying to fill in some, you know, notes along the way? Which is definitely how it felt in the search case when Judge Meta had closing arguments, you know, yesterday, I, I felt like, you know, maybe she wasn't as far along in her opinion. And, and that question, I didn't, I didn't know exactly where she's going, but I don't know that it's that material. And I'll tell you why is. And this also came up in the search case too, like conventional wisdom that everybody agrees Google search is the best search engine it has been. And the issue is that it's monopoly power, it's market power and the use of it is kept other parties from, from having a better product. And so this is very similar to what, you know, I think where we are in the ad tech case, there's not examples of an ad server that's actually better out there now because the investment hasn't been there. And why would there be? Because Google has 95% of the market on the publisher side and a pretty compelling tie that they're being alleged of that you can't get access to all the revenue that could possibly come through your way unless you use their service. So I didn't read too much into that one, I guess is the long answer I just gave you.

[Alison Schiff]

Well, let's talk about a but for world like, do you, what kind of world do you think we'd live in if Google hadn't bought DoubleClick or if the ad server was treated differently within the wider Google.

[Jason Kint]

Org?

[Alison Schiff]

What would that have meant dot dot dot for like Equative and Kebble.

[Jason Kint]

Well, and you know, open ad stream and we could go back on. There were other ad. Yeah. Products that were out there.

[Alison Schiff]

Atlas, OpenX, shut it down App Nexus had one.

[Jason Kint]

Yeah, yeah. And so there would be more competition for publishers interest. I think, you know, to simplify it and take a step back, it would be more likely that the publisher ad servers would work clearly for the publisher and the publisher would be able to verify it's working for the publisher and in their best interest. And there would likely in that vein also be tighter rules around how data can be used, which hasn't been a big focus of the case. But, but you know, the merging of DoubleClicks and the publisher ad server and all the data that comes from it with search, with Android, with, you know, all these other tentacles in 2016 was just a really important moment in the life of Google and that's, that's come up in other areas in other cases. So you know, having competitive ad servers out there that work directly for the publisher and under their rules would be a different, be a different world.

[Alison Schiff]

So sticking with trying to analyze Judge Brinkama's utterances like they're the Bible code, I thought her question about whether it even matters if the court finds Google guilty of being a monopolist in one market or three markets to be really interesting because maybe it doesn't matter. I mean, do you think it matters one or three?

[Jason Kint]

It might for remedies for sure. I think, you know, the thing that she seemed to be asking, I, I read it as, you know, either if I go with the Amex argument that it's two sided market, you know, are we still able to get there? Because just department kind of hedged and floated that in their, in their last filing that even if you insist on calling this a two side market, we still have a case. And then also if she can't get there on the ad buying tools, on the ad buying tool in the case that it's a, that they have monopoly power there, then you know, does that matter? And you know, I, I don't know that matters for, for you know, finding against Google. But when she gets to, to possible remedies, it probably, it probably does. I also think it's important because it's kind of the component that ties back to the search case, to be careful using the word ties. But, but the, the ad tech case, you know, the original complaint starts with the search case really that Google had monopoly power in search text ads and they use that to then do to ad tech what they did to search. They took that market power from the ads search text ads business and then used it to dominate the ad tech stack. And that was filed way before we had a decision. So now we have a decision that they actually do have a monopoly in search text ads out of the D.C. court. So that's kind of the connection point between the two cases and I think that's where you probably get some more aggressive remedies.

[Alison Schiff]

Also I'm glad you brought up the search case because I want to talk about it a little bit. People when they're discussing the two antitrust cases about Google, they're often, they do it separately. Like the search stuff is happening over here and the ad tech antitrust stuff is happening over there. And I know there are different cases, I understand that with different decisions, different potential remedies, but why is it so important to think about these cases as a, if not a continuum, at least happening in the same universe.

[Jason Kint]

Yeah, I think it's critically important. I think, you know, probably from a, from the plaintiff side, from the Justice Department side, it makes sense to separate them. You don't know which ones you're going to win and, and they still will be appealed no matter what on up. But when you talk about fixing and remedies of abuse of antitrust, you also talk about taking away the fruits of the abuse, which is a part of the harm. So the whole ad tech dominance that Google has, I would argue it's a fruit of the search dominance. And so when they took search and merge that data with the entire Google Ads stack into a holistic profile and use the advertising from the search case, the search dominance in order to get market power in adx and then in turn with DFP because of that adex spend, it connects the two cases and it shows the larger enterprise at work. You can argue YouTube, by the way, is a massive fruit also because they've used the market power in search and advertising to grow the YouTube business in a significant way. And so you start to see those things get unpeeled. As you talk about remedies, I think you're seeing that with Chrome as a divestiture target. Google's lobbyists are out there saying, well, Chrome wasn't even part of this case, but as part of fixing the monopoly power and abuse, the court is now saying you have to divest Chrome. I think that's fascinating and interesting and pretty powerful.

[Alison Schiff]

I, I feel like what I'm about to say is evidence that I just need my Thanksgiving break. I just need a vacation. Because when you said roots of abuse, oh, that could be the name either of the documentary on Netflix about this case or it could be the name of like the fourth book in the 50 Shades of Gray series. Anyway, moving on. Moving on, indeed. That might be a good place for us to take a quick break. But when we're back, we'll, we'll talk about the case. So stick with us.

[Sarah Sleus]

I'm Sarah Sleus, executive editor of Ad Exchanger. I have with me today Antonio Miller. He is research manager of Advertising Insights of Activision Blizzard Media, where he gets to research how people are gaming and what kind of ad experiences work for players and brands. Welcome, Antonio.

[Antonio Miller]

Hi, Sarah. Thanks for having me.

[Sarah Sleus]

Attention and the metrics that define it are really hot industry topics today. And I know your team recently did research on this subject. Can you tell us a bit more about it?

[Antonio Miller]

Yes. So for the past year, a team has been diving into the subject of attention, mostly through eye tracking research and internal measurement data. And now, through our latest research titled Play It How Gaming Immersion Unlocks Player Attention, we dive into the concept of immersion, which when studied, can predict consumer action with 80% accuracy. This means immersion impacts metrics like brand recall, awareness and even purchase intent for brands. And we're finding that gaming is the key to high quality attention, not only because it outperforms online video and social media in immersion, but also because of its ability to engage and delight audiences and hold consistent, stable immersion.

[Sarah Sleus]

Okay, so immersion is a key thing here. How does gaming differ from other forms of media in terms of capturing and sustaining audience intention?

[Antonio Miller]

So, in our latest research, we found a few things. First, Gaming has a 99% viewability rate. It also has more ads that are fully viewed at 100%. That's hard to beat. Secondly, games provide players a place to be relaxed and happy, which is crucial for stable immersion and can translate to better ad experiences. This seems obvious to us. There's so much content on social media and online video platforms, you don't know what you're going to get. With gaming, every point of the journey is opt in, from launching the content to ad moments that are timed and rewarded when you need the most. And that's what keeps in Game immersion and ad Immersion stable. And finally, as a result of all this, gaming outperforms online video and social media in immersion, which, as I've said earlier, has huge impact on metrics like awareness, recall and purchase intent.

[Sarah Sleus]

If brands want to take advantage of this highly immersive gaming space, how should they get started?

[Antonio Miller]

So the thing to remember is that gaming is about joy. It's inherently fun. So I'd encourage brands to have fun with it and execute it in a way that can enable that balance of fun, immersion and brand resonance. We have an internal studio, it's called Starcade Studios, that does exactly this. It partners directly with brands to find that right balance. So I'd say Starcade Studios is a great place to start. However, if you're intent on creating a campaign without so much external support, prioritizing partnering with a publisher that is thoughtful about ad placement, offers immersive experiences like branded mini games and rewards players for their time. We know players value this exchange. We also have data showing that players are more immersed after a thoughtful ad experience, which supports the sentiment that when done right, ads are welcome.

[Sarah Sleus]

Thank you so much, Antonio, for those tips.

[Antonio Miller]

It was my pleasure. Thanks for having me. Sarah.

[Alison Schiff]

All right, we're back. And let's keep talking about what, what Judge Brinkama may or may not be thinking. So I'm curious what you, what you would say to this. So should the DOJ have called any advertiser witnesses? Because the judge asked the DOJ specifically why they didn't. I think it was the first question that she asked of Aaron Teitelbaum, why they only called agencies on the buy side. So what does that tell you? And do you think that calling an advertiser or two would have made for a stronger case or added anything to the DOJ's case?

[Jason Kint]

You know, I, it caused, out of all the questions she asked, it was the one that caused me to pause the most. And, but I also thought their answer was the right answer and the, and a good answer. And it just made me uncomfortable because when she asked it. But the reality is that marketers in general and finding the one that's willing to actually, you know, wants to come testify against Google and at the same time understands the tools and the technology and how it gets placed well enough to handle a grilling from Google. It is, there's probably a handful out there and, and it's the agency holding companies and their experts that do all the buying. And you know, so that's at least for the big marketers. And if you get the small marketers out there, they just aren't sophisticated enough and they just buy what Google tells them to. You know, they do what Google tells them to do, basically. Yeah. And by the way, there was a big note that was made several times that all of Google's witnesses, minus one, were funded or paid by Google or had received grants from Google. And that included the marketer witnesses that Google brought, which were part of their, you know, grow with Google program that they have that they, they support small business with. So I don't know. I don't think it would have been that effective, but it was interesting question.

[Alison Schiff]

So I mean, correct me if I'm wrong though. You don't really have a choice as to whether you testify, do you? Like, aren't you subpoenaed?

[Jason Kint]

You can subpoena the witness. Yeah, but then, you know, how, how happy are they going to be to be there? And you know, and all the discovery that goes with that, etc. It's just if they need to get the answers, I think the agency holding companies were a better place to go and, and they went there. So.

[Alison Schiff]

Okay, fair enough. And then based on some of the other stuff that Judge Brinkama Brought up some of the brief observations she made here and there. Anything else that you picked up on that maybe shows how she's leaning or seems to be leaning.

[Jason Kint]

I thought her brush back on the spoliation piece too, which is the, you know, for the audience that hasn't been following as closely. This is something that's come up in all of Google's antitrust cases. The App Store case in California, the ad tech case in Texas now, and the search case, where it was found that Google was both improperly labeling communications as privileged attorney privileged. And they weren't. And they had a policy to do that to keep stuff from being disclosed. And then also that they were purging chat messages within 24 hours by default in order to hide communications. And, and in the prior jury trial, the judge instructed the jury, because that's what you have to do, that you should assume that, that Google has hidden evidence from you. And that would have been, it would have been adverse to their, to their defense. And Judge Brinkama made a decision before the trial started that since she's the judge and she's ruling it's a bench trial, that she didn't need to make that decision ahead of time. But she brought it up herself first yesterday.

[Alison Schiff]

Yeah.

[Jason Kint]

And it was when Google started to use some of the communications internally, the informal communications of the employees as part of their defense. And she said, be really careful where you're going because dangerous territory. You're in dangerous territory. Those were the words she used. And, and I don't think she's going to lean into that as part of her decision because it creates other risk on appeal, etc. But it tells you that she does not give a lot of credibility to what, what they're, you know, using as their defense in terms of, you know, they, they're looking backward and trying to create a pretext for a lot of what they're doing. So that was very interesting to me.

[Alison Schiff]

Yeah, well, I, that I did want to ask you what you think she'll do, whether she'll address the spoliation stuff in her ruling next year, but maybe not, I guess, because it makes it a little bit more vulnerable to appeal. But Judge Amit Mehta, the judge in the search antitrust case, I mean, he, he punted the question of spoliation and he, he was very critical of Google's actions to do with evidence in his ruling, but he didn't hit them with sanctions. He just said like, you know, you might not be so lucky next time. He gave them a tongue lashing and Left it at that. So I was wondering whether Judge Brinkama might not do something, she might not catch that football, that spaghetti football.

[Jason Kint]

Yeah, well, I think she, I, I think it's likely and she, and she already said that she, you know, she's, she's followed, she's mentioned this multiple times, she's followed Judge Metis trial and in his decision, etc. And so I could see her taking inspiration from that, which is basically, you know, shame on you, Google and giving the lashing, but also, you know, fighting against them. Right. And so because the ultimate thing that Meta said was I don't need this. She said, bad Google, bad Kent Walker. This is really, really bad. But I don't need this to find against you. So I'm not going to use it as the basis of my decision as, because I don't need it. And I could see her doing that too. I mean it just makes it in my mind even more likely she's going to find that Google is liable across the case. So, you know, if she doesn't, then she'll probably address it, I guess. But.

[Alison Schiff]

So no new information was presented on, on Monday during closing. I mean that's not really the point of closing arguments, but sitting there in the gallery. Did anything change your mind as you were hearing the two sides do their thing?

[Jason Kint]

No, nothing. Nothing caused me to pause to think. I thought going in, I mean full disclosure, I thought going in that the ad tech case was the, was the more likely case for the Justice Department to come away with a victory than the search case because the search involved, you know, payment to its, to Apple basically for quote unquote, default status in search. And you could get into arguments of what that means. But so I thought the ADA case was a better case and you know, the search case, they won. And I felt good about the ad tech case when the trial wound down earlier in the fall. And so nothing changed my mind. And, and you know, I think unless there's some technicality, you know, and Judge Brinkham, I did a head fake on Amex or on, on duty to deal. I think that it's just department's win. So, but we'll see, we'll know very soon. She, I think she's trying to say by the end of the year still, but I wouldn't be surprised if it falls into January.

[Alison Schiff]

I, I mean I've been putting this in my stories because it feels, I feel like it has to be early next year. But maybe I'm wrong. I'd love to be proved wrong because it would be fascinating. Although maybe I wouldn't love to be proved wrong because it's the holidays and I want some quiet time.

[Jason Kint]

Yeah, I mean, she hasn't missed a deadline yet. And she shows up and starts her hearings, it seems like two minutes before the hour. So when she says she'd like to have it out by the end of the year and that she's mostly written the opinion, I take her on her word. I guess at this point she's proven to be accurate every time.

[Alison Schiff]

I know where you stand. But being totally objective, were there any aspects of Google's case that you found compelling or interesting or convincing?

[Jason Kint]

No, no. I mean, I, I try to be as objective as possible on all this. I mean, this was something. Now it's been almost 10 years of, of, you know, forming the, the, you know, informing, I should say the regulators on the issues. And you know, and I think they're super savvy at this point. I mean, I think if you asked anybody five years ago, could, you know, the Justice Department or any regulator, State ag, understand these cases this well and you know, be talking, you know, in open court about nuances of second price, you know, auctions and ad tech, I think a lot of people would doubt, would doubt that. But it proves that, you know, with diligence and discovery and the right people, you can really, I mean, the people arguing these cases on the Justice Department have been just phenomenal. I thought, you know, I thought the, the lead for the dust form yesterday, Julia, I mean, closing that yesterday, Julia just nailed it home. And so they get this, they get this marketplace pretty well now and it's been impressive to watch. So I'm sorry, but I don't, I can't come up with anything in Google's defense yesterday that really was persuasive to me. So.

[Alison Schiff]

Fair. Fair enough. I, I also thought Julia Tarver woods closing of the closing. So she did the last 20 minutes of the DOJ's closing. It was very compelling. It, it felt like it would even play with a, with a jury. You know, it was kind of colloquial.

[Jason Kint]

Yeah, yeah. So. And you have plenty of time to prepare that. Right. And decide if you've got X number of minutes. What are you going to say? That's what was so baffling about Google going so far over. And you know, it wasn't like she didn't try to pack enough in because there was a lot that they tried to pack in. They still went way over. So I just don't, unless there was just an attempt by Google to keep everything on the table as part of the appellate process. I don't know what the, you know, what, what caused that to happen, frankly. So, yeah, we'll, we'll see. We get the opinion. I think one other thing, I just, if you don't mind, I, yeah, Flag too. And I know I, I think I wrote about this on Ad Exchanger. You know, keep an eye as the administration turns over to keep an eye on the America act because that was very simple ad tech legislation that addresses both Google's market power and being on both sides and the transparency and interest obligations of the advertisers and the publishers. And so I wouldn't be surprised if out of all the things that could possibly come back up in this big change to who's in charge in D.C. that's one of the things I'm watching closely and I think an opinion out of Virginia will definitely inform that.

[Alison Schiff]

So taking a step back, but by doing that, also looking ahead, I have to ask the obvious question and I do know your answer, but we'll talk about it in a little more detail like what you think the outcome will be, but also how it will impact publishers and the wider ad tech ecosystem and from both sides. Right. I think you think it's unlikely that Google wins, but I want to ask that question from both perspectives. Like what do you think the outcome will be for publishers and the ad tech ecosystem if Google wins or if it loses?

[Jason Kint]

Interesting. I mean, if Google, if Google wins this, then I think all bets are off because they probably win it because there's a decision that, you know, it's a two sided market and, and the mousetrap, you know, has to be evaluated as a whole. And, and you know, I guess the judge is not even looking at the harms on the one side that would outweigh the positives on the other. But it's just a, that's a shock to the system. And I would, if I was an ad tech, I would just be, you know, deeply concerned because it's just Google's going to buy up the rest of the supply chain as part of building that balance trap to compete with, you know, basically you're making the argument they have to compete with TikTok and Facebook and these other closed platforms and they are the open, the open Internet at that point in the open web, which is kind of the case now. And that's part of the problem. But, but it basically says that's okay, they can be the open web. And that's, that's a Very, it should be a very concerning outcome for anybody that cares about the open Web because you know, deep in the discovery of this case, you know, that was a part of Google's strategy was to turn the open Web into a, effectively a platform where they control all aspects of it. And it's a, they're making basically a closed platform of the open Web. And so that basically gives them the permission slip that's bad for publishers, it's bad for advertisers because they're just going to continue to meet their, their earnings obligations. Right. And, and they have to extract that revenue from elsewhere and that harms everybody else. So I don't think it's going to happen. So good news. And, and when they, when the opinion comes out against Google, then it's all about the remedies and getting those right. And I do think there's some short term consequences that could be bad for publishers. You know, there already are so many challenges right now, but you know, having to adjust the system and the way it works and Google's role in the system will probably create costs and distractions for sure that a lot of publishers won't be happy about. So for that same reason, I think it's worth keeping an eye on the private. There's a lot of private lawsuits around this too and there'll be a lot more if Judge Brinkoma finds against Google. And those are for billions and billions of dollars. And so injecting some money into the system would be helpful to help deal with those changes.

[Alison Schiff]

What parts of its ad stack could Google realistically spin off? Like from a practical point of view? Because that egg feels quite scrambled.

[Jason Kint]

I mean they could, they could be forced to invest the whole stack. I mean the complaint says the sell side and the ad X, but it also says whatever is necessary in order to right the ship. And so, you know, who's to say that Google should have, you know, the ability to use any of the demand that's coming from search across the broader web. Right. Like, so it's, it's scrambled but there's no reason it can't be unscrambled. And you know, AT&T is probably a pretty good example of unscrambling that, you know, that create a lot of interesting, you know, both opportunities and the baby bells, but also a lot of innovation and technology and things that nobody ever would have predicted would come out of that.

[Alison Schiff]

So I mean the DOJ is swinging like right for the stands in the search antitrust case because one of the things they're calling for is a spin off of Chrome. And I mean, if that happens, does that, I mean, I know these are separate cases with separate remedies, but if that happens, what does it mean for potential remedies in this case? Because if Chrome is no longer part of the overall animal, then like we established before, which is obvious, this, none of this happens in a vacuum. This is a system. So Chrome can only be spun off once and then it has the second order effects.

[Jason Kint]

Well, and also, you know, for an area that you all have covered so closely over the years, it's dragged on and on with the deprecation of third party cookies. And what's Chrome, what's Chrome's role there? Right. And so, you know, if they're forced to spin off Chrome, how does that affect Google's strategy to be able to, you know, target ads and mine data across the web? And so yeah, it definitely bleeds into the ad tech case for, you know, for sure. So, and how they would think about remedies there.

[Alison Schiff]

Does it feel extreme, a spinoff of Chrome in the search case? Like, how likely is that to really happen? I mean, Chrome is distribution, like it's a massive source of data for Google. So the impact is clear. But how likely is it to happen?

[Jason Kint]

Well, the appeal of this case, I think is going to be a difficult one for Google to overturn because it's based mainly on US V. Microsoft in the same circuit. And I think that's also why it's not a given that the Supreme Court will take it up. And so it really, I mean, it's really down to, does Judge Mehta think that this is a, it's an appropriate remedy? And, and you know, I, I've said all along he really understands, you know, the case, he's had four years with it and he understands the role of data and the network effects from that data. And he understands that Chrome in particular is a data input. And so I have to believe unless they, you know, they're going to bring out all their experts in, in the spring and try to stop that train and they'll have a good, a good, you know, two weeks of hearings and Google, if the one thing they have, they've got a lot of attorneys and, and paid experts and academics that, that they've paid over the years in various ways and so they'll bring everything. But if I had to put a bet on it, I'd still think it's less likely that it actually happened because of all those things and Google's ability to work the system. But it ain't nothing. And so we'll see.

[Alison Schiff]

All right, well, penultimate question and I give you free reign. This doesn't just have to be about Google, but if you had a time machine, we're going to put aside the paradox of time travel. What specific point in time would you travel back to like a wild haired prophet? And like, what change would you make or would you suggest be made to the people who can make this change so as to alter the future of online advertising for the better for publishers?

[Jason Kint]

That's a great question. I, you know, I've long believed, and those who followed our work won't be surprised by this, that the, the role of data in the market power is critical and you know, it is coming out in some of these cases. But they're not basing the entire case on, on data or privacy or anything like that because for antitrust reasons it's, it has, it's a, it'd be a change in antitrust enforcement in terms of the value of data being captured. I don't think it, you know, I don't think it's necessary to prove their cases either. So I think it's probably a wise move. But to answer your question, I would put significant constraints on the ability to collect and use data across parties back a decade ago. And really that's when Google, you know, pressed really hard to keep that from happening. So the integration of data and market power and antitrust is I think the most important thing to understand in the digital world and our time. So that's, I guess that's where I would go. And you know, that's too abstract. It just means, you know, Google can only collect and use data within YouTube or within search or within any of its choke points. And they certainly can't collect and use data from publishers and then use it however they want. There's some constraints on that.

[Alison Schiff]

Well, somewhere in the multiverse maybe that's happening.

[Jason Kint]

Yep.

[Alison Schiff]

So it's that time of year. Have to ask what, what are you thankful for this year? One personal, one professional.

[Jason Kint]

Wow. Oh well, I always would go to my, my family on the, on the personal front and I am just, just feel very, very fortunate with where I've got two older boys and just grateful for, we try our best but how they're shaping up as they are now in high school and so family first and then in my work life, the trust of the folks that both we work with as a team and the members and the news industry and the media industry and the entertainment industry, particularly in some of these things that involve taking on, you know, some of their biggest and most important partners. Right? I mean Google is probably the most important source of revenue for most publishers in terms of where it comes from and their biggest partner. And so it takes a large group of companies to have, you know, the trust of them over time to, to can move the needle on these types of cases. And so I've been grateful for that support because it's been a, a ten year, a ten year fight at this point.

[Alison Schiff]

Well, keep on fighting your fight. I'm, I'm thankful for family too and for all of our listeners. So Jason, thanks for the time. Happy holiday.

[Sarah Sleus]

Thanks to Activision Blizzard Media for supporting ad exchanger podcasts. If you're interested in learning more about the research you heard from Activision Blizzard Media or in seeing what's possible for your next in game campaign, head over to its website, www.activisionblizzardmedia.com.

[Alison Schiff]

SA.