The Remedy Gap: Why Proving a Monopoly Isn't Enough to Break the Machine

### Opinion: The Structural Stalemate

In the world of antitrust litigation, there is a profound difference between a legal victory and a structural one. For the Department of Justice (DOJ), the recent ruling regarding Google's advertising technology is a stark reminder that proving a company played by a rigged set of rules is far easier than convincing a court to dismantle the machine that enforces them.

When Judge Leonie Brinkema ruled that Google would not be forced to sell its ad exchange, she effectively signaled that while the government can win the argument on legality, it is struggling to win the argument on remedy. The DOJ has successfully painted Google as a lawbreaker, but it has yet to provide a surgical tool that the courts trust enough to use. We are seeing a pattern where Big Tech is found liable for monopolistic behavior, yet emerges from the courtroom with its core architecture intact.

### The AdX Deadlock

According to reporting from Engadget, Judge Leonie Brinkema rejected a DOJ request to force Google to divest AdX, the company's ad exchange. This request followed a ruling last year in which Brinkema determined that Google had illegally monopolized two ad tech markets.

To understand the stakes, one must look at how the machinery functions. As Engadget reports, publishers utilize AdX to sell unused advertising space to buyers in real time during page loads, paying Google a 20 percent fee for the service. The DOJ and eight states filed suit in 2023, alleging that Google leveraged its monopoly power to facilitate a higher proportion of ad sales and charge inflated fees. The government based its case on the assertion that Google controlled 87 percent of the ad-sales tech market.

While the court agreed that Google acted illegally by forcing publishers who host ads on Google servers to use AdX, the victory was partial. Ars Technica reports that the court did not find that Google broke the law regarding the tools used by advertisers.

### Behavioral Band-Aids

Instead of the structural divestiture the DOJ sought, Judge Brinkema accepted "behavioral remedies" offered by the parties. While the specific order remains sealed for 14 days to allow for redactions, Bloomberg reports that these remedies involve Google being required to open its ad tech tools to its competitors.

From a regulatory standpoint, this is the difference between removing a wall and simply painting a door on it. The DOJ argued that forcing the sale of the exchange was the only way to truly level the playing field. However, as Ars Technica notes, the ad exchange represents a relatively small portion of Google's total revenue. The court's hesitation to order a sale suggests a fear of unintended ripple effects across Google's broader advertising ecosystem.

Lee-Anne Mulholland, Google's vice president of regulatory affairs, expressed satisfaction with the ruling, stating in a statement that the company is "very pleased the Court rejected the DOJ's proposal to break apart tools that help small businesses reach new customers and grow."

### A Pattern of Minimal Consequences

This ruling is not an isolated incident; it is the conclusion of a trilogy of antitrust battles that suggest Google is largely unscathed by the era of legal scrutiny.

First, there was the search monopoly case. Ars Technica reports that while the government won the case, it failed to convince a judge that Google should be forced to sell the Chrome browser. Instead, Google was ordered to stop requiring partners to distribute Google apps on mobile devices and to make search data available to rivals.

Second, there was the battle with Epic Games. In that case, Google was found to have used its control of the Play Store and Android to suppress alternative app stores and maintain high consumer prices. While Google was forced to allow third-party app stores and lower Play Store fees, Ars Technica notes that the remedies were limited to the U.S. and Google maintained control over the vetting of apps.

Even international regulators have attempted to curb this power. Engadget reports that last September, the European Union's executive arm fined Google $3.5 billion after finding the company gave preferential treatment to its own ad tech products.

### The Future of the Monopoly

When the dust settles on these three major cases, the result is a company that has been repeatedly labeled a monopolist but has not been forced to shrink. The DOJ has successfully identified the "rigged" nature of the auctions—as government lawyers argued in the ad tech trial—but the courts have been unwilling to perform the corporate surgery required to fix it.

As Ars Technica observes, this leaves Google's market power largely unchanged. With the legal uncertainty of the last few years receding, the company is now positioned to apply its existing playbook to the next frontier: artificial intelligence. If the current trend holds, the DOJ may find that by the time it successfully argues that AI tools are monopolized, the machine will have already become too large to break.