Speaking of his "super assistant" idea as aspirational for now, Nick Turley said on the bench trial's second day that getting access to Google's search index and query data would take the pressure off OpenAI's efforts to develop its own search index and speed up development of a tool that in theory would combine artificial intelligence responsiveness with the up-to-the-minute and more accurate results of an internet search.
Access to Google's data, a remedy proposed by the U.S. Department of Justice, "would allow us to build a better index faster," Turley said. "It allows us to get over the cold start problem for the long tail queries," he continued, referring to less common search inquiries that may not be as easy to produce.
The DOJ and a coalition of state attorneys general suing in parallel are pursuing an expansive series of remedies, including the divestiture of the Chrome browser, after winning a ruling from U.S. District Judge Amit P. Mehta in August declaring Google an illegal monopolist over online search and accompanying search text advertising. Their goal is to facilitate competition as quickly as possible, including by promoting AI search tools that can go toe-to-toe with Google.
In addition to proposals designed to give current search rivals — namely Microsoft's Bing and DuckDuckGo — access to needed data scale while ripping down Google's default contracts that Judge Mehta found effectively locked up browser companies, device makers and wireless carriers as search distribution partners, the DOJ is looking to the future of search. That future, even Google has admitted, is wrapped up in AI, prompting market-shaping investments that have included Microsoft itself pumping more than $13 billion into OpenAI.
Turley testified Tuesday, in the remedies phase of the monopolization lawsuit, that he reached out to Google to try to gain access to its search engine. He found that the confidentially named search partner on which ChatGPT relied for real-time information was dramatically inferior to Google.
"There was a huge quality difference," Turley said.
But according to him, Google rebuffed the outreach, despite a similar partnership with Meta over its AI offerings and despite OpenAI's assertions that it could innovate more quickly with Google's help.
The end goal, Turley said, is the super assistant: A term he said he doesn't use publicly but that describes a product that could do far more than just answer questions. For instance, it could find a certain pair of shoes that a user might be interested in based on what the system knows about them, he said.
The push behind that innovation, Turley said, is grounded in the limits of generative AI tools that currently are prone to hallucination and are date-locked on information that is only as recent as the last data set fed into ChatGPT and its rivals. He said that fact-checking ChatGPT and providing more up-to-date information depends on a search engine. While OpenAI is working on developing its own tool, Turley called it an immensely difficult undertaking that is years away from realization.
Judge Mehta showed interest in that timeline Tuesday, asking Turley how long it would take for OpenAI to field an AI tool capable of competing with search if it gets access to Google's index and its syndicated data as proposed by the DOJ. Turley suggested five years, with caveats.
"I've consistently underestimated how hard this problem is," he said.
Judge Mehta held last year that Google illegally choked off would-be rivals from needed user access and accompanying data through its effectively exclusive multibillion-dollar default placement agreements with the likes of Apple, Samsung and Verizon.
To reshape online search into a competitive market, the DOJ wants to block Google from paying search distribution partners for the privilege of including its engine in their technology, along with forcing it to divest Chrome and a multiyear prohibition keeping it from owning or acquiring any browser. The government wants to require Google to offer users a choice screen of search engines on all its offerings in a truly neutral way. And it wants to force Google to provide a massive amount of search data to prop up rival search engines.
To undergird the bid to block Google's default placement, DOJ attorney Diana A. Aguilar asked Turley to illustrate the kind of roadblocks even the popular ChatGPT faces because of Google. OpenAI, he said, cannot hope to match Google for the leverage it can exert over website publishers to get them to permit a "crawl" of their pages. And while ChatGPT is huge, Google's AI overviews, which come automatically with many Google searches, dwarf ChatGPT's query volume, he testified.
Today, Turley said ChatGPT must be downloaded and has no automatic distribution deals on Android devices. "It was not a lack of trying," he said, asserting that OpenAI never got anywhere in talks with distribution partners, seemingly because they knew OpenAI would never be able to pay as much as Google.
While OpenAI may paint itself as diminutive compared to Google, an attorney for the company, Kenneth C. Smurzynski of Williams & Connolly LLP, pressed Turley on cross-examination Tuesday on the company's prominence in the AI market, with an estimated 85% market share among chatbot websites — not mobile — last year in the days before DeepSeek came on the scene. Turley also had to admit that ChatGPT has continued to grow dramatically, that its brand is so strong it's become synonymous with AI chatbots, and that its most recent round of funding — announced at the end of March — accumulated $40 billion of capital on a valuation of $300 billion.
"OpenAI accomplished all of that without signing any deal with a third party to give it distribution," Smurzynski said. Turley agreed.
Turley also had to admit that ChatGPT has been integrated into the iPhone's Siri assistant under a deal with Apple that Google had also vied for, only to lose out to OpenAI.
Turley had to confirm his words in a company document in which he wrote that ChatGPT has "what we need to win," including "one of the fastest growing products of all time." He argued however that those words were meant to inspire his team in the face of major obstacles, including the distribution advantages of companies like Google giving preferential treatment to their own AI offerings.
Google has signaled it plans to appeal no matter what remedy Judge Mehta imposes, expected to happen in August. In the meantime, the company has proposed a narrower remedy that would ban it from conditioning the license of the Google Play Store or other Google applications on Android phone companies and browser makers also licensing Google's mobile search or Chrome applications.
Google has also called for a ban on any conditions blocking distribution partners from placing rival search engines on their technology, provisions it said go to the core of concerns raised over its search engine exclusivity.
The DOJ argues however that Google is effectively trying to maintain the status quo. Illustrating that Tuesday was the continued testimony of Peter Fitzgerald, a Google vice president responsible for Android distribution agreements, who admitted to DOJ attorney Veronica N. Onyema that the company had considered imposing requirements in renewed distribution agreements for search and its AI offerings. Those requirements included conditioning search advertising revenue on device search exclusivity.
An important reason why those new conditions haven't been implemented, Onyema suggested, was because of Judge Mehta's ruling last year.
On cross-examination by Google attorney Matthew L. McGinnis of Ropes & Gray LLP, Fitzgerald said the company never imposed those terms. Instead, he testified that Google's new and proposed distribution agreements with Samsung, Motorola, Verizon, AT&T and T-Mobile give them flexibility to pick search engines, didn't prohibit them from working with other generative AI providers, and didn't oblige them to promote Google search or Chrome to receive revenue share. He also said that Google, in letters sent out days before the kicked off, waived requirements on its partners that they carry Google's AI assistant and permitted them to carry alternatives.
To defend its push for mandated choice screens on Google's offerings — namely its Pixel smartphones — the DOJ on Tuesday questioned Caltech professor and behavioral economist Antonio Rangel, who argued that choice screens, when properly designed, can influence users to try other options. He did caution that longstanding user "bias" will make it hard to prompt consumers to switch.
Rangel cited a European study of choice screens implemented under European Union mandate, where he said Google's market share dropped between 0.5% and 1.5%. The number did not seem to impress Judge Mehta.
"To a lay person that doesn't seem like a big move," he said.
Rangel responded by arguing that in absolute terms it doesn't seem like much. But in context, Google is starting with a tremendous market share and any switch would be "enormous" for much smaller companies that may be incentivized to spend billions to draw consumers away from the Google, he said. He also said that markets will evolve, meaning the court shouldn't think of the influence of choice screens as "static."
Questioned by the DOJ's Sarah M. Bartels, Rangel cited a study by Mozilla that concluded that 97% to 98% of users want a choice screen for browsers.
On cross-examination by Google attorney Graham W. Safty, however, Rangel admitted that he didn't consider the power of Google's quality in building up its brand and attracting users.
The government is represented by David E. Dahlquist, Adam T. Severt, Travis R. Chapman, Veronica N. Onyema, Diana A. Aguilar, Sarah M. Bartels, Grant Fergusson, Kerrie J. Freeborn, Meagan M. Glynn, John J. Hogan, Michael G. McLellan, Keane M. Nowlan and Andrew Tisinger of the DOJ's Antitrust Division.
The states are represented by their respective attorneys general, and William F. Cavanaugh Jr. of Patterson Belknap Webb & Tyler LLP.
Google is represented by John E. Schmidtlein, Benjamin M. Greenblum, Colette T. Connor, Kenneth C. Smurzynski, Graham W. Safty and Aaron P. Maurer of Williams & Connolly LLP, Michael S. Sommer and Franklin M. Rubinstein of Wilson Sonsini Goodrich & Rosati PC, and Mark S. Popofsky and Matthew L. McGinnis of Ropes & Gray LLP.
The cases are U.S. et al. v. Google LLC, case number 1:20-cv-03010, and Colorado et al. v. Google LLC, case number 1:20-cv-03715, in the U.S. District Court for the District of Columbia.
--Additional reporting by Ali Sullivan, Matthew Perlman, Jared Foretek and Lauren Berg. Editing by Adam LoBelia.
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