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Features: Google Wins in SearchKing Lawsuit |
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As you may recall from our previous coverage, little-fish search engine SearchKing sued big-fish search engine Google, claiming that Google had unfairly reduced SearchKing's PageRank. Specifically, SearchKing claimed that Google, in demoting SearchKing's page in its rankings, had "intentionally interfered with SearchKing's business relations."
Google moved to dismiss the complaint, and last week, the judge granted Google's motion. The ruling is not long, and it tracks Google's brief very closely. An earlier case, Jefferson County, had held that an investment service's bond ratings were "opinions" and therefore deserved strong First Amendment protections; the court applied that case's reasoning directly to the Google case. Analysis within . . .
SearchKing raised one good objection to this line of reasoning: PageRank is computed according to a patented algorithm, and so ought to be objectively determinable. The court responded by saying that while the process may be objective, Google modified the result, which remains a subjective expression of Google's opinion about the value of a web page.
I'm not sure this is a very healthy distinction to make. First of all, it seems that SearchKing has a good reply to the court's reasoning: "Google lied when it said that the PageRank they displayed for us was the PageRank actually computed by the algorithm." That would be a definite misrepresentation of an objectively verifiiable fact, so it's not clear that the court's reasoning really shows that everything Google said about SearchKing was purely a matter of subjective opinion.
And second, distinguishing process from result would seem to create perverse incentives for search engines. As long as you keep things out of your algorithm, you're immune, but if you start putting demotions into the algorithm, then you're starting to tread on matters of fact and you may open yourself to liability. In other words, search engines get better legal protection when they act mysteriously and not according to well-defined procedures. I doubt this is what the court was thinking, but this is what the opinion says, and as such, it's something of an unfortunate precedent to have on the books.
The court's second explanation is somewhat gnomic:
At issue is the subjective result produced by an algorithm unique to Google. Just as the alchemist cannot transmute lead into gold, Google and Page's statements as to the purported objectivity of the PageRank system cannot transform a subjective representation into an objectively verifiable fact.
If I read this one right, the court is saying that because PageRank, in the end, is a matter of opinion, statements about algorithmic objectivity are simply irrelevant. I'd agree that the PageRanks, in the end, are opinions, but this way of reasoning strikes me as slightly backwards.
It would seem more helpful to say that Google has invented an algorithm and subjectively believes that this algorithm produces accurate results about the importance of web pages. Google then went on to alter the results of this algorithm to lower SearchKing's results, on the subjective belief that the PageRank algorithm didn't get things quite right when dealing with SearchKing's "partner network" of closely-interlinked sites. You could then conclude, as I would, that both of these subjective beliefs were protected expressions of opinion.
The benefit of doing things this way is that it's clear about how search engine algorithms work. Someone invents an algorithm and sees whether they think its results are good. If we later need to come back and talk about algorithms in another legal context -- say, where a search engine completely delists certain sites and then openly lies about it, or where a monopoly search engine systematically distorts its results to favor paying sponsors, we're not trapped behind the misleading conclusion that search engine rankings are always "just" opinion.
Google never comments on litigiation in which it is involved, but SearchKing has posted a press release on the dismissal; they're weighing their options. That this was a politically-driven lawsuit from the start is confirmed by the press release, which includes such thoughts as:
This case was never about placement in search results or page rank. This case was about the attempt to restrict the legal business of another without due process. It was about the abuse of power. SearchKing never broke a law, yet was accused, judged and executed without so much as a notice of intent. This affected thousands of innocent people without just cause.
The release also says, "We do not see the dismissal as a loss, rather, we see it as a victory." Well, then, I guess that means that case was a victory for everyone involved. Except for those of us who were hoping that the growing field of search engine law would receive an articulate precedent well grounded in the workings of search engine technology. The opinion isn't necessarily bad, just a lot less helpful than it might have been.
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| The comments are owned by the poster. We aren't responsible for their content. |
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Re: Google Wins in SearchKing Lawsuit (Score: 1) by Lulu_of_the_Lotus-Eaters on Friday, June 06 @ 01:51:29 EDT (User Info | Send a Message) http://gnosis.cx/publish/ | While I don't think the issue is tantamount, I think it extremely unlikely that SearchKing's allegation that Google disregarded its own algorithm to "demote" SearchKing sites has any truth to it.
Google modifies its algorithms every month, and they simply do not have the resources to manually review each result. Instead, one of the changes Google focussed on in improving its algorithms was to ignore subgraphs that look too much like "link farms." Even if Google was somehow unlikely to change the algorithm in such a manner initially (unlikely), it is clear that their *goal* is to find an algorithm that filters in such a manner.
SearchKing's flawed claim reduces to the idea that Google is obligated to maintain the same (flawed) algorithm that once favored SearchKing's manipulations. It's a terrible idea--both for the utility of Google, and as a matter of law. |
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Re: Google Wins in SearchKing Lawsuit (Score: 0) by Anonymous on Friday, June 06 @ 02:15:16 EDT | This case was about the attempt to restrict the legal business of another without due process.
Google isn't some government agency that's required to facilitate your business.
If I sell magazines that doesn't mean I have to sell your magazine, nor do I have to give it the same prominence on the rack if I do decide to put it on there.
SearchKing never broke a law, yet was accused, judged and executed without so much as a notice of intent.
Google never claimed to be the enforcer of any law.
My local ice cream shop stopped carrying my favorite flavor. While tragic, it's in no way analogous to them putting me in prison - let alone executing me.
If I refuse to design a new logo for you, will you sue me next? |
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Re: Google Wins in SearchKing Lawsuit (Score: 0) by Anonymous on Friday, June 06 @ 10:15:50 EDT | Just becuase there's an algorithm involved, that dosn't mean that the result is objective.
An algorithm might need parameters to be specified. An algorithm might be general enough to supply a great number of results (i.e. rankings) and the job of the user is to choose the particular form of the algorithm which meets their needs.
The current algorithm might be a derived work from the patented one. The derivation may also be trade secret-protected rather than patent-protected.
The court correctly reached the conclusion that Google is in the business of publishing opinions and that it permissibly altered its algorithm when the opinions it published weren't the ones they wanted to publish.
The algorithm argument is a very poor one.
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Re: Google Wins in SearchKing Lawsuit (Score: 0) by Anonymous on Tuesday, June 10 @ 19:58:43 EDT | Grimmelman's reasoning is absolutely right when he argue that, and quote
"I'm not sure this is a very healthy distinction to make. First of all, it seems that SearchKing has a good reply to the court's reasoning: "Google lied when it said that the PageRank they displayed for us was the PageRank actually computed by the algorithm." That would be a definite misrepresentation of an objectively verifiiable fact, so it's not clear that the court's reasoning really shows that everything Google said about SearchKing was purely a matter of subjective opinion.
And second, distinguishing process from result would seem to create perverse incentives for search engines. As long as you keep things out of your algorithm, you're immune, but if you start putting demotions into the algorithm, then you're starting to tread on matters of fact and you may open yourself to liability. In other words, search engines get better legal protection when they act mysteriously and not according to well-defined procedures. I doubt this is what the court was thinking, but this is what the opinion says, and as such, it's something of an unfortunate precedent to have on the books. "
End of Quote.
Google want to have it both ways, objective from the research side but subjective from the business side. This case is far from over, as Google's patent on PageRank can be challenged with this ruling. My two cents. |
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