Google Investigation Reflects Increased Antitrust Enforcement By Government Regulators

The Wall Street Journal and New York Times have reported that the Justice Department has set formal demands, known as civil investigative demands or CIDs, to Google and book publishers regarding a deal that would allow Google to post millions of books online. Google has been scanning out-of-print books since 2004 and was sued for copyright infringement by the Authors Guild and the Association of American Publishers. Google settled the lawsuit last year, and part of the settlement agreement allowed Google to use the out-of-print books in exchange for payments to publishers and authors. Critics claim that the deal gives Google broad copyright immunity and prevents competitors from entering the market for digital titles. Others applaud the deal because it will expand digital access to books. The Justice Department CIDs reflect a broader interest by government regulators into antitrust law, especially in the technology industry. Google and other tech companies are the subject of other government investigations including:

• Whether tech companies agreed not to poach each other's workers;
• The overlap of directors on Apple's and Google's boards; and
• The sufficiency of standards on behavioral advertising.

The Wall Street Journal reports that "People close to Google say the company considers the investigations part of a broader push by new antitrust regulators to step up scrutiny of the technology industry after a lull during the Bush administration." This increase in antitrust scrutiny may not be limited to Google or the technology industry. There are signs that antitrust regulators, as well as state and federal lawmakers, are taking an increased interest in antitrust enforcement in a variety of industries. This increase in antitrust enforcement comes on the heels of a variety of decisions that have limited remedies for private plaintiffs under federal antitrust law.