Don’t Let the Ninth Circuit Hijack the Google Antitrust Suit  

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Google recently requested that the blockbuster December antitrust suit filed by ten states in response to its “illegal” and “monopolistic” online advertising practices move from Texas to the Northern District of California of the Ninth Circuit.

In its official filing, Google cited suitability as the primary reason, arguing that the Northern District court is “the venue where Google is headquartered and where more relevant witnesses and documents are located than in any other district in the country.” In reality, though, the reasoning for Google’s request for a re-location change appears far more conniving and calculated than creating a more thorough and accountable courtroom.

Conservatives know all too well that the Ninth Circuit’s decisions often don’t align with their interests. In the past, Newt Gingrich called the court “anti-American,” while Rush Limbaugh categorized it as “the Ninth Circus.” At the start of his presidency, Donald Trump even advocated for its breakup.

Most of these influencers’ criticisms have stemmed from past Ninth Court decisions that were not aligned with the social conservative and paleoconservative agendas, such as its ruling against immigration restrictions and decision that “one nation under God’s” place in the Pledge of Allegiance is unconstitutional. At the same time, however, the court—which is right in Big Tech’s backyard—is also known for holding a strong bias in favor of its tech giant neighbors.

Consider last February, when—in a case that pertained to alleged discrimination by Google’s YouTube—the court gave the company a crucial (albeit short-term) legal win by effectively holding that tech platforms aren’t bound by the First Amendment.

Never mind that the Supreme Court already ruled 75 years earlier that when sizable private media companies restrict “the flow of news,” it can be “defeated by private restraints no less than by public censorship.” The high court wrote, “it would be strange indeed…if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom,” especially from monopolies deemed illegal under antitrust law. Nevertheless, the Ninth Circuit, which one would think is supposed to follow legal precedents, seems to believe that it interprets the Constitution better than the highest court in the land.

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Then, of course, there was the Ninth Circuit’s infamous decision in Google v. Oracle, which critics claim put Google’s business interests over the sanctity of U.S. intellectual property law.

After initially asking for licensing terms, Google decided to just take 11,500 lines of code from Oracle to create its mobile phone system. This may seem unfair—and it is—however, the Ninth Circuit ruled that the fair use doctrine of copyright law makes the coding not qualify for copyright protection.

While a fair use exemption to copyright exists to allow scholars, teachers, reporters, and others to use certain copyrighted material for “limited” and “transformative” purposes, Google’s use of this code does not fit either characterization. Google didn’t expand the utility of Oracle’s coding. The company used it for the explicit functionary purpose that its creator developed it to do, making billions of dollars in the process. That’s why the appeals court, Obama and Trump Department of Justices, and congressional copyright leaders have rejected the Ninth Circuit’s findings, bringing this copyright case all the way up to the Supreme Court.

Given these significant and controversial Ninth Circuit decisions that Google has benefitted from in the past, it’s fair to wonder just how much of a factor they played in Google’s request to move this antitrust proceeding there.

Legal precedent does not appear to be on Google’s side here.

Last year when the company tried to move a case from the Texas Western District Court to the Northern District of California, the court found that Google did not meet its “heavy burden” to demonstrate that it is “clearly more convenient.” The U.S. district court for the Eastern District of Texas should find the same in this antitrust proceeding.

Even if Google’s argument on increased convenience for its witnesses has merit, fairness and justice should always come before expediency. Here’s hoping that it does in this case as well.

Michael J. Pappas
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Michael J. Pappas served as a member of Congress for New Jersey’s 12th Congressional District.

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