Back in October of last year, LawMeme reported on a lawsuit filed by SearchKing against Google. The lawsuit alleged that changes made by Google to its algorithms reduced the PageRank ratings Google assigned to pages within the "SearchKing Network" and that this reduction was an illegal interference with SearchKing's business. In addition to asking for damages, SearchKing filed a motion with its complaint asking for a preliminary injunction to force Google to restore its PageRanks.
Well, Google has replied, and we have the juicy details right here. First, Google has a response to the complaint (the Response), in which it claims it has done nothing wrong and asks the court not to grant an injunction. And second, Google has gone one step further and filed its own motion to dismiss the lawsuit (the Motion to Dismiss). Google thinks, or at the very least is asserting, that it has a slam-dunk iron-clad defense to SearchKing's claims.
Full analysis inside, along with some thoughts about the issues raised by the case . . .
The factual background
SearchKing helps its "partner sites" build their search-engine hits through "marketing" and "portals." Because these "high quality" sites link to other "high quality" sites within the SearchKing network," goes the thinking, Google will take notice and increase their PageRanks -- because, speaking abstractly, the definition of a good page is one that is linked to by good pages. Certainly, that's how the democratic society of linking on the Web works, and it's that social structure that Google's algorithms are designed to track.
At the same time, Google doesn't like "artificial" attempts to boost PageRank and tries to keep them from influencing its calculations. You can see the tension here, on a theoretical level.
More practically, SearchKing -- through its PR Ad Network -- also sells "ad" links from pages, priced on the basis of their PageRank. With one hand, SearchKing is boosting PageRanks; with the other, it's charging advertisers fees for access to high-PageRank pages.
Now, Google freely admits that it demoted SearchKing's page ranks in response to SearchKing's actions. But its response fudges one very interesting question: which actions?
- It might have been a general algorithm tweak to penalize link farms and SearchKing happened to get caught in the dragnet. (SearchKing may not think its actions fall under the definition of "link farm," but there are a great many people out there who do. At the very least, SearchKing plays it pretty close to the edge.) SearchKing would just be the only one who went to court to complain.
- Or, Google could have observed the quasi-incestuous nature of certain links within the SearchKing world and decided that sites hosted on that network and/or using its linking structure needed to be assessed a penalty somewhere in the PageRank formula. This would imply that SearchKing was particularly targeted (although it would still be the only company among those targeted to have gone into court).
- Finally, Google might have been turning a blind eye to SearchKing before, but considered SearchKing's practice of "selling" PageRank to be illegitimate, and assessed the penalty on that basis. It might have done so to preserve the "integrity" of PageRank, or, as SearchKing asserts, to suppress a budding "competitor" (SearchKing's term: I suppose the idea is that both companies are in the business of monetizing access to "good" pages).
The Response doesn't say. Certainly, revealing the precise basis of the decision would give away important information in the arms race between Google and the SearchKings of the world, so Google's close-lipped answer here isn't surprising.
As far as I can tell, this question of motive is the only disputed factual matter in the entire lawsuit. SearchKing's complaint was fairly loose in its allegations and didn't allege very many facts; those that it did allege, Google doesn't dispute. Thus, Google's answer turns very quickly to questions of law.
The motion to dismiss
Google's first move is to ask the court to dismiss the action "for failure to state a claim upon which relief can be granted." This is an early motion, and usually quite severe; Google is telling the court that even if SearchKing proves everything it alleges, it still won't have shown that Google acted illegally. It's a fairly appropriate motion to raise in this case, however, precisely because the disputed factual ground is so small. The final ruling is likely to focus on legal issues, rather than factual ones, so there's no need to wait to resolve the basic question: not what Google did, but whether it was wrong.
Google has one very powerful argument here. Google claims that PageRank is commercial speech, protected by the First Amendment. SearchKing is alleging "tortious interference with contractual relations," but according to the precedent Google cites the First Amendment provides an absolute defense when the "interference" consists of speech that is "evaluative opinion[]." (Note that, since this defense applies regardless of the intent with which the speech was made, it renders irrelevant the question of why Google reduced SearchKing's page rank). Only speech that "contain[s] or connote[s] factual matters that are provably false" can be "wrongful" in the sense required in order to constitute "tortious interference."
What makes this argument such a doozy is Google has a case directly on point: Jefferson County School Dist. No. R-I v. Moody's Investor's Setvices, Inc., 175 F.3d 848
(10th Cir. 1999). An Oklahoma school district sued a bond rating agency after the agency reduced the district's credit rating and claimed various damages from the district's increased troubles selling bonds. There, the trial court threw out the case on a motion to dismiss for failure to state a claim, and the 10th Circuit Court of Appeals uphelpd the decision. That case is about as good a case as Google could have hoped for. It covers the legal issue on point, it was decided in response to the same kind of motion, it was issued by the 10th Circuit (whose decisions are binding on the District Court in the SearchKing case), it applies Oklahoma tort law (Oklahoma law applies in the SearchKing case), it's very recent, and the facts are very closely analagous.
Google claims that its assessments of the "value" of a web page are very much like a credit agency's assessments of the creditworthiness of a bond issuer. Both collect objective data, but then sift that data through subjectively-determined and secret formuale in order to come up with a ranking they present to the outside world. Like bond ratings, PageRanks are opinions. They're professional opinions, but they remain opinions. As Google states in a beautiful footnote:
The PageRank values assigned by Google are not susceptible to being proved true or false by
objective evidence. How could SearchKing ever "prove" that its ranking should "truly" be a 4 or
a 6 or a 8? Certainly, Search King is not suggesting that each one of the billions of web pages
ranked by Google are subject to another "truer" evaluation? If it believes so, it is certainly free to develop its own search services using the criteria it deems most appropriate.
Google throws in a few other slaps. It cites an Oklahoma Supreme Court case, so that there can be no doubt that Oklahoma law protects judgemental statements. It notes that SearchKing's first "cause of action," its request for an injunction, isn't actually a cause of action at all (it's a proposed remedy, which SearchKing could earn only by having some other good cause of action). And it points out that SearchKing's description of the tortious interference claim is highly vague, alleging very few specific facts. The implication is that Google could respond equally strongly to other necessary elements of SearchKing's legal claim, if only it knew what that claim was.
The Response and motion for preliminary injunction
In replying to SearchKing's motion for a preliminary injunction, Google gets to reiterate all of the arguments made in its own motion to dismiss, since SearchKing can only get an injunction if it shows that it's likely to win the case. In discussing the merits of the case, Google incorporates (mostly by reference to the Motion to Dismiss) its First Amendment defenses, but also makes one interesting extra point, that Google is under no obligation to index SearchKing's pages at all; once it does, SearchKing has no right to complain about the PageRank it gets.
Now, this argument certainly doesn't hurt Google, but there are many situations in which the law places you under no legal obligation to start a course of action, but requires you to complete that course of action in good faith (this principle is the foundation of contracts, after all). Similarly, there are things you can do for no reason, but not for certain reasons: it's illegal to fire someone because of their race, even if you can fire them without cause.
In fact, part of SearchKing's complaint was that "Google, as a provider of a ranking system upon which the Internet community relies, must apply the system in a manner that is not arbitrary, nor aimed at restraint of trade." Neither side has offered any genuinely legal arguments on this particular issue, but it gets at the wider policy point that makes this case so interesting. On what basis can an information provider or other intermediary choose which information to provide or recommend? Do the rules change when that intermediary becomes the biggest fish in the sea? Should they? More on this below . . .
Turning back to the Response, it also advances a number of arguments tied to the specific requirements for a preliminary injunction. Among them:
- SearchKing's demand that Google turn over its source code would impose serious "irreparable harm" on Google. This is of course quite true, and SearchKing was reaching especially far in asking for this disclosure as part of the injunction. The more typical procedure would be to let SearchKing's lawyers see the source code as part of pre-trial discovery of evidence, under a suitable protective order which would prevent further disclosure.
- Google turns SearchKing's claim that an injunction would "serve the public by maintain the integrity of the Internet and Defendant’s page rank system,” on its head -- because, of course, Google sees its own goals as preserving the integrity of PageRank. Interestingly, therefore, both parties acknowledge a public interest in that "integrity."
- Google similarly throws SearchKing's words back at it in discussing the "harm" that SearchKing suffered from its PageRank reduction. Exhbit "B" at the back of the Response is an open letter to Google by SearchKing CEO Bob Massa from last summer, in which he defends his business practices. Quoting from it, SearchKing's complaint, and from the PR Ad Newtork's rules, Google suggests that SearchKing, by its own admission, suffered no harm from the PageRank reduction.
Aggressive lawyering in the Response
This last point is worth examining in more detail.
First, SearchKing itself has been telling others that Google's rankings are just opinions. Second, SearchKing acknowledged publicly that Google would disapprove of its actions. And third, the public at large felt the same way, and learned about the PageRank reduction only through SearchKing's own actions.
To some extent, this part of the reply is just Bob Massa's big mouth coming back to bite him. SearchKing's lawsuit is as much a lawsuit in the court of public opinion as it is in the United States District Court for the Western District of Oklahoma; the things he's had to say to reassure his customers don't sit well when he comes before a federal judge. And it is quite true that SearchKing's complaint fails to describe the harm that it has suffered with any particularity, leaving it open to the reply that such harm doesn't exist.
At the same time, Google's reply constitutes some aggressive lawyering After all, the direct effects of a lowered PageRank are fewer hits from Google searches. And when you sell ads based on PageRank and based on impressions, both a lowered PageRank and fewer hits will hurt your bottom line. Google is taking advantage of SearchKing's sloppy pleading to construe the "harm" as something less tangible; perhaps a weakened reputation in the eyes of the public. Or, more subtly, as something SearchKing has admitted it has no right to complain about, and therefore not "harm" at all. But that's a pretty fine distinction, and one that SearchKing can certainly dispute.
There are a couple of other points in the Response at which Google manages to overstate a strong case. Given the strength of its First Amendment defense, these tactical issues don't seem all that important, but it's useful to note those issues on which SearchKing has a point, even if it failed to raise that point in its Complaint.
First, in characterizing the nature of the injunction SearchKing requests, Google maintains that it would "grant SearchKing substantially all the relief that it seeks," a condition that raises the bar SearchKing must clear in order to get the injunction. Google advances this claim on the basis that SearchKing is asking for a permanent injunction to restore its PageRanks, which is exactly the same relief it asks for in the preliminary injunction.
Google's statement almost works, but "preliminary" and "permanent" don't mean the same thing. Of course, SearchKing shouldn't be able to get a permanent injunction without winning a full trial, but a temporary injunction, by its very definition, doesn't grant all the relief that a permanent one would. A temporary injunction ends when the trial is over. This distinction comes up all the time, and lawyers are always trying either to make it or to obscure it. I made this very distinction in a mock trial brief just last month; my opponent tried to obscure it. You couldn't fault him for trying; it's hard to fault Google's lawyers, either.
And second, Google asserts that SearchKing's request for money damages undercuts its claim -- a claim necessary for an injunction -- that it has suffered harm "not compensable by money damages." Again, these two claims don't work very well together rhetorically or logically, but legally they're not yet in opposition. At the pleading stage of a lawsuit, it's both reasonable and normal to assert two mutually inconsistent factual theories or to ask for two mutually incompatible remedies.
It's interesting to compare this urge to stand and fight on the small legal details with Google's willingness to play ball on the facts. It indicates, to my mind, one of two things. Either Google knows that a closer examination of the facts would substantially hurt its case and is trying to avoid extensive discovery by stipulating as much as it can, or these small legal issues are no-harm-in-trying all-among-friends devices among Oklahoma lawyers. On that possibility, note this letter from SearchKing's lawyer to Google's lawyer. Contrast the apologetic tone of the letter between the lawyers with the apparently icier tone of the relations between SearchKing's lawyer and his client.
What happens next?
I'd be shocked if SearchKing got its injunction. Preliminary injunctions, as the courts are very fond of saying, are "extraordinary remedies," and courts have great discretion in refusing to issue them. SearchKing's pleadings are vague and don't allege specific harms; Google has a very strong defense with good precedent on the merits. So don't expect to see SearchKing back at PageRank 8 soon.
On the other hand, as strong as Google's defense is, the case isn't yet ripe to be thrown out. Because Google's objection in its Motion to Dismiss goes is, formally, an objection to the form of the complaint, SearchKing gets another "bite at the apple." It has a chance to allege additional facts, and, more importantly, to make its legal claim more precise so as to counter Google's objections. SearchKing is entited at least to try.
Looking further down the road, unless SearchKing turns up some extremely good precedent under a rock, or comes up with a completely new legal theory that gets around the First Amendment defense, this suit is probably not going very far. Google has a bulldog of a lawyer on the case, and he's found some highly persuasive cases on his side. As a matter of law, Google looks very much in the right here. It can recommend sites or not, at its discretion; it can rank them however it chooses to. That's its business, and it would be inconsistent with our assumptions about society, commerce, and the Internet to force it to "recommend" SearchKing to the tune of PageRank 8. I find this argument persuasive; I think it gets right our intuitive notions about why Google should be free to alter its ranking algorithms according to current law.
The larger questions at stake
That said, the policy questions that SearchKing is raising are critically important. Google has bceome hugely important to the Internet, and many are starting to ask whether the public interest demands special treatment. Perhaps a search engine is important enough to be treated as a regulated utility, the same way that water, gas, and the cables over which search requests travel are. Google is good, most netizens seem to think, but what if it weren't? What if it became an arbitrary dictator, raising up and throwing down web sites at will. That's what SearchKing thinks Google has become already, or at least that's one major question raised by this suit.
Similarly, the policy answer in this case will almost certainly be applicable to other pressing technico-legal questions. It's possible to read this case as a case about media regulation. Maybe Google is a common carrier; in agreeing to rank pages and index the Internet, it has (implicitly) agreed to abide by a guarantee of equal and non-discriminiatory treatment. On this view, it would be immensely important whether Google devalued SearchKing specifically, or as part of a general algorithm tweak. A great deal may also hinge on whether you think that Google provides access to information or merely comments on it. SearchKing alleges the latter, and Google agrees, but maybe SearchKing should have brought its case by arguing that Google has become, in effect, a gatekeeper to Internet content. On that view, a low PageRank isn't just an opinion, it's also partly a factual statement that you don't exist in answer to certain questions, on the basis that low search results are never seen. When was the last time you looked for results beyond 200 on a search request returning 20,000 pages?
These are very messy questions, but also very important ones. They're also very unlikely to be addressed directly in the courtroom, in this case or in other cases. Existing law just comes down too squarely on Google's side (I think) for courts to take these broader questions without mutilating our existing rules. Nor should they. Not everything should be settled in the courtroom, and the discussion about the proper role of search engines is one that needs to take place in the same place this case began, back before it was a lawsuit: out on the Internet, where people read and appreciate others' thoughts, and then contribute their own by adding links. Among other things, Google is a device for determining the consensus of the Web; and it's just not right to fix the process by which we determine consensus by any means other than honestly arriving at one.
Addendum: on the documents in this case
SearchKing has put its own filings in the case online as images. It has also placed Google's replies online, but charges a $20 fee for access. Technically, the $20 is a donation to SearchKing's legal fund, in exchange for which you'll be sent a password. SearchKing describes your "rights to use content or reproduce" as follows:
This site and all information contained within it are the sole property of SearchKing, Inc. and may not be reprinted, republished or used in any way, in part or in it's entirety, without the express permission of SearchKing, Inc. Violation of these terms, especially taking remarks out of context to support your own opinions, will be dealt with all the severity allowed under the law.
Given the selective quotation employed by Google in its filings, one understands the frustration behind this attempt to condition access to the court documents. But the rest of the statement is just not true.
First, the court filings are public documents. Anyone can go to the clerk's office for the U.S. District Court for the Western District of Oklahoma and request a complete copy of the case file, including all the filings on SearchKing's restricted page. They aren't SearchKing's property. And since the court hasn't entered any order restricting public access to the documents, neither SearchKing nor anyone else has any right to prohibit their reproduction or republication. The major legal publishers are careful to claim copyright only in their database assembly and annotations; they don't dispute that the opinions and briefs they publish are in the public domain.
Second, SearchKing (or its lawyers) didn't even write the filings it wants you to pay to have to see. Google's lawyers did.
The copies of Google's filings to which this article links were obtained by LawMeme from other sources. Consistent with keeping these documents freely available to the public, LawMeme is hosting them on its own server, and will continue to archive all filings and other legal documents in this case. We will also post further updates as events develop.