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Features: Google replies to SearchKing lawsuit
Posted by James Grimmelmann on Thursday, January 09 @ 17:19:16 EST Contracts
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.

 
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· a response to the complaint
· motion to dismiss
· PR Ad Network
· open letter to Google
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· whether the public interest demands special treatment
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PageRank by Judicial Decree? SearchKing Sues Google

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Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 09 @ 21:19:34 EST
Great analysis, thanks.

Google should only have been sued if they DIDN'T take action against Search King. Wilfully allowing deceptive advertising in their search results would be illegal. Ref:

http://www.commercialalert.org/index.php?category_id=1&subcategory_id=24&article_id=113


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 09 @ 21:36:19 EST
Sorry -- not a law student, but maybe somebody could enlighten me here. How is it even remotely possible to compare Google to a public utility?

The gas and electric companies are special because you *have* to order from them -- it really is them or go heatless/powerless, and that local monopoly is granted by government fiat, as well as physical constraints.

Google doesn't do anything special -- anybody else can obtain internet access, set up an indexing system, and create a search engine. Google owes its place at the top of the pile purely to technical excellence, and is sustained purely by excellence and reputation. Aside from its popularity, how is Google distinguished from any other web service?


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 09 @ 23:32:52 EST
Remember when we all used Altavista? Google is popular, but that doesn't imply it's a monopoly or utility.


[ Reply to This ]

SleazeKing's claim of Copyright (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 00:30:37 EST
I think that they could get around that by claiming that it's a copyright of the IMAGES of the documents, not the docs themselves, which would fit in with why they would host images instead of text anyway.


[ Reply to This ]

Re: Google's reply to SearchKing, countersuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 04:43:24 EST
The way I saw this was the exact opposite from Searchkings statements. I felt that Searchkings use of a link farm was reason enough for Google to countersue Searchking seeing as they were attempting to infringe upon, and in the process hurt, Google's good reputation.

SearchKing's actions were for the sole purpose of altering the publics perception of Google's results. They wanted the public to believe SearchKing's family of sites had higher ratings than they should have had. In the process, SearchKing has degraded the quality of Google's results which in turn injures Google's reputation.

Since search engines are based almost entirely upon their reputations, especially when the source code is closed, SearchKing would fundamentally harm Google's business with it's practices.

As a result it seems like Google is in the better position to sue for damages from SearchKing.

The comparison to other rankings services are very useful in this situation. Consider for example a group which rates stocks based upon the companies earnings from the previous year. If company A had 100$ in earnings and company B had 50$ does company B have the right to sue the rating group? Of course not.

If company B tells everyone they made zillions of dollars but closed all their factories and filed for bankruptcy is the rating group required to rank company B higher because they said they made zillions? Of course not.

In the same vein if Google feels (or in this case proves) that SearchKing is misrepresenting what it's rated on then Google is within it's rights to demote them artificially as it sees fit.

One thing that I've been wondering recently is how SearchKing's page rank has been changed as a result of articles being written about the lawsuit and in the process linking to it. I'd hate to think they benefited in anyway from this ridiculous lawsuit.


[ Reply to This ]

They _could_ be removing Search'King' (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 08:29:04 EST
It's good that Google has lots of integrity, otherwise they'd be prone to answering:
"Since you complained about the search ranking, we have completely removed you from our entries. We'll simply offer no opinion on your web pages. Hope that suits you. Got any further questions?"


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 08:39:22 EST
One short comment in the article may be the real reason why this lawsuit was filed. It mentioned that SearchKing wanted Google to release the source code to their search and ranking engine. Such a disclosure would all but destroy Google throught a number of avenues as it would somehow be "leaked". One is that it would allow SearchKing and similar "promotion" organizations a means to discover how to artifically inflate page rankings. Another is that it would destroy Googles trade secret upon which it bases its business. You can probably find a few more.


[ Reply to This ]

Public policy / utility /essential facility (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 09:53:41 EST
While I don't think the policy questions are ripe for final decision, they're certainly the most interesting aspect of this case. While Google is one example of a currently "key resource", the CDDB, IMDB, and Amazon are all similar idominant positions on the net at the moment (although there are well-developed off-line alternatives).


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 1)
by PaulAlanLevy on Friday, January 10 @ 11:01:29 EST
(User Info | Send a Message) www.citizen.org/litigation
Thanks for this thoughtful analysis which also seems to me to be more balanced than many of the previous comments want to admit.

We considered entering this case as amicus because of the underlying policy issues that you raise, but will sit on the sidelines at least until the legal issues are better defined.


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 1)
by cetan (cetan_post@yahoo.com) on Friday, January 10 @ 11:16:08 EST
(User Info | Send a Message) http://www.cetan.com
I don't have anything to add to the discussion, I just wanted to say thanks for the great analysis of this quite interesting topic.


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 1)
by jakedobkin on Friday, January 10 @ 12:25:51 EST
(User Info | Send a Message) www.bluejake.com
I was thinking about this case today, and realized that Searchking should quit litigating and just change its business model: if Google has altered its PageRank system to penalize any site linked to or included in Searchking's "network", Searchking should simply start a new service: Google PageRank Assassination. Say you sell vacuum cleaners, but you are stuck at #2 under a search for vacuum cleaners on Google because Vacuum Cleaner King has got a higher PageRank and has the #1 slot locked up. You go to SearchKing, and for a small fee, they would link to the site of your competitor and thereby lower your competitor's PageRank. Presto, you recapture the #1 slot and Searchking makes some money. Imagine the lawsuit that would come out of that.


[ Reply to This ]

illustration - extreme case of Searchking lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 14:07:39 EST
I think Google is doing the right thing. Think about this extreme case:

For any given set of good search terms, you will normally get at least several hundred hits. What if everyone from page 2 to 20 sued because they weren't (or were no longer) on page 1?

Clearly Google couldn't be made to follow a court order to keep them all on the first page. And even if Google did, the link-farm-profiting companies off the scrolling length of the screen would then sue to be placed on top.

Would we want Google's pageranks to come down to which sites had the best or most highly-paid lawyers?


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 1)
by mcgroarty on Friday, January 10 @ 16:12:26 EST
(User Info | Send a Message) http://www.mcgroarty.net
More as a curiosity than a useful data point --

In its own promotional materials, SearchKing noted that companies such as Google wouldn't like their actions and might work against them.

Presumably they expected Google to do exactly what they did from the very start.


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, January 10 @ 22:14:26 EST
This seems to be anti-competive action by Google. From what I understand, SearchKing sells avertising based on Google's pagerank.
Google also sells avertising by pagerank (sort of, by word value, overall a metric they control), so they have simply made thier service more attactive then SearchKings because they control the ranking.


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Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Saturday, January 11 @ 08:57:17 EST
Is this analysis to simple: Google's business is based on people trusting the quality of its search results; SearchKing's business is based on manipulating Google searches and in the process, lowering the trustworthiness of Googles product; so Google should be entitled to do anything it needs to do to defend itself from another company who is acting like a parasite by feeding itself on its host while at the same time damaging its host.


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What if Google Completely Banned..... (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Sunday, January 12 @ 02:07:54 EST
I believe that the Searchking case will probably be decided in Google's favor but the situation does raise interesting questions regarding Google's dominant position in the search results 'business.'

To change the fact scenario, what if Google completely banned a site (either manually or through its automated algorithm process) that complied with its expressed Webmaster Guidelines and offered useful content to the Internet community? Would this not be a capricious and arbitrary action that could detrimentally affect revenues for those with a presence on the web (the "a website without a Google listing is like a house without electricity" argument)? I know of several instances where 'bans' have taken place to existing sites with no clear resolution of the reason for the exclusion from Google's index - no spamming, etc.

Given Google's 75% market share in search results (in a sector that is consolidating - witness the extinction of Excite, Go, NorthernLight, etc.) would the argument for public utility regulation be stronger? Or would an existing legal cause of action protect the public from this harm?


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Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Monday, January 13 @ 18:16:12 EST
Is there any relevance of this case to the issue of Google removing listings of sites that contain information about the Church of Scientology? I believe COS threatened to sue Google for providing links to copyrighted material, and Google dropped the links. What would the legal positions in this case have to say about this issue? i.e. If they are like a utility, can they be sued for removing links to information?


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, January 15 @ 04:58:35 EST
Sir:

I greatly enjoyed your thoughtful, balanced synopsis. After following a link from one of the bajillion or so SEO 'sites, I wanted to to stay for only a quick skim but soon felt compelled to read the entire piece plus all the top-level comments.

A couple quick points I'd like to offer for comment:

(1) Although it seems clear they will prevail in the long term, surely GooGLE HQ is now the scene of some nail-biting. That's how it usually plays when you find your most crucial, proprietary information (eg: algorithms) put 'in play' by a motion, however ill-conceived. Plaintiff's counsel is right to sound apologetic.

(2) SearchKing's Mr Bassa must have an emotional stake in this, rather than a truly rational objective. His complaint says money won't help, so what does he want? If GooGLE hands over the algorithms it will destroy their viability as an SE...thus removing his shot at a direct remedy. So, then what?

Again, thanks for a great read.


[ Reply to This ]

First Amendment vs. Prejudiced Algorithms (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, January 30 @ 18:27:58 EST
I'm a software engineer, not a lawyer...I'm curious about the First Amendment right of holding and proclaiming an "opinion". And I have two questions about it....

(1) At what point does holding secret the mechanism by which an opinion is formed allow that OPINION to cross the line into a statement of FACT.

(2) Google or a Credit Bureau have the right to run their numbers in any which way they choose... however, how do we insure that they are not DISCRIMINATORY or MALICIOUS? And how do we weight the validity of those algorithms when we can not analyze them?

Let's say that Google or TRW were to put in their algorithms that Joe Blow of Peoria or Search King will automatically get hit with a 25% demotion..... but no one else will...... In this case, you have an issue that is not a generic algorithm, but a blatantly discriminatory clause and not valid from a statistical perspective.

Under these conditions, is the rating agency's speech also considered protected under the First Amendment?

Rating agency wise I'd guess you could attempt to run the score of Joe Blow with a group of people with similar INPUT data records and determine that Mr. Blow's was singularly and -presumably- erroneously low. This would infer an error in the algorithm from a mathematical point of view and an invalid algorithm. In fact, unless the scoring agency could prove the singularity, from a mathematical perspective the algorithm would be invalid because from a black box perspective (ie: input vs. output) it had been shown to have at least one failure.

Some one at Search King could create a new like site and gather it's ratings and do a comparison.

My problem here with First Amendment speech protection of an opinion is that we do not know what the algorithms are.

I would think that "opinions" 200 years ago were what you or I would say or write about someone or something we knew lots or nothing about, and other people would somehow know something about us and either dismiss or accept our "opinions".

However, when the algorithms are closely held, then the recipient of the OPINION has little basis to weight the validity of that opinion and often will accept that as FACT. And at that point, isn't that SLANDER?


[ Reply to This ]

Re: Google replies to SearchKing lawsuit (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, February 05 @ 12:48:07 EST
OK, there have been updates, Search King has responded and Google has responded - anyone got the lowdown without having to pay Searchking $20.00 to find out?


[ Reply to This ]

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