May 16, 2006
KinderStart v. Google Motions to Dismiss and Strike
By Eric Goldman
You may recall the pending lawsuit by KinderStart against Google for Google's downgrade of KinderStart's PageRank. My previous analysis here. I posted the initial complaint, although I understand that a first amended complaint was subsequently filed.
I think the motion to dismiss' introduction elegantly frames the issue:
The Amended Complaint, in almost 200 paragraphs, raises what amounts to a single question: Who should determine how an Internet search engine identifies those websites that are most likely to be of relevance to its users? Since its inception, Defendant Google, like every other search engine operator, has made that determination for its users, exercising its judgment and expressing its opinion about the relative significance of websites in a manner that has made it the search engine of choice for millions. Plaintiff KinderStart contends that the judiciary should have the final say over that editorial process. It has brought this litigation in the hopes that the Court will second-guess Google’s search rankings and order Google to view KinderStart’s site more favorably. If KinderStart were right, and websites could use the courts to dictate what the results of a search on the Google search engine should be, neither Google nor any other search engine could operate as it would constantly face lawsuits from businesses seeking more favorable positioning. Fortunately, KinderStart’s position finds no support in the law.
KinderStart’s approach has been tried before. Over the years, authors who felt their books belonged on bestseller lists, airlines who thought their flights should be featured more prominently in airline flight listings, bond issuers dissatisfied with their ratings, and even website owners angry about Google’s ranking of their sites, have turned to litigation seeking to override such judgments. Each time, the courts have rejected such claims, recognizing that private businesses have a right to express these opinions freely. KinderStart’s many legal theories do not justify a different result. Because the First Amendment protects Google’s right to share its opinions about the relative significance of websites, KinderStart’s complaint must be dismissed.
The motion to strike (sometimes called an "anti-SLAPP" motion) is a special California proceeding to protect against lawsuits that inhibit protected speech. As the motion to strike explains:
Under Cal. Civ. Proc. Code § 425.16, a defendant may move to strike from a complaint claims for relief arising from defendant’s exercise of its free speech rights in connection with a public issue. In this case, all of KinderStart’s claims, but most obviously its free speech, defamation, and negligent interference claims, arise from Google’s protected speech. These claims seek to hold Google liable for expressing its opinion about the relative importance of Internet websites to the public (i.e., “PageRank”) through the operation of its well known Internet search engine. Put simply, KinderStart does not like the opinion that Google holds and shares with users about the significance (or lack thereof) of KinderStart’s website.
By KinderStart’s own admission, Google’s speech concerns matters of public interest. Accordingly, KinderStart’s claims challenging that speech must be stricken unless KinderStart can demonstrate a probability that it will prevail on them. This KinderStart cannot possibly do.
While it's very typical to file an anti-SLAPP motion in a situation like this, filing the motion is consistent with Google's standard practice of going on the offensive in litigation. If it wins the anti-SLAPP motion, Google may be entitled to attorneys' fees.
UPDATE: I've posted more source materials in the case. See here.
Posted by Eric at May 16, 2006 10:00 AM | Search Engines
It is a well known fact among search engine optimization consultants that Google does blacklist sites who try to cheat the page rank algorithm. There are a number of tricks sites use to fool the algorithm such as placing text rich in keywords on a page in a color that can't be read by the viewer but are picked up by the Google spider. Another trick is to use refer spammers – sites that punch out thousands of bogus pages referring to your site. When these tricks are detected Google will blacklist. The first blacklisting can be appealed but the second is permanent. I have looked at KinderStart.com and it is, on the surface, a very well designed site from a page ranking perspective (should be about a 5 or 6 out of 10 from my experience) so I can understand why they are upset. A search for www.kinderstart.com on Google turns up over 900 referring pages that are NOT at kinderstart.com – that’s pretty impressive and further evidence they are being blacklisted. If they didn't use tricks then Google has some explaining to do - it's pretty hard to make a site with a zero PR. If they did use tricks then the issue is whether Google has a right to blacklist a site that tries to better them at their own game. It's one thing to edit when you are small and insignificant, but Google is far from small and insignificant. Using the argument that they are not the largest or a monopoly is just plain stupid. They are huge and everyone knows it. A zero page rank IS devastating and pushes your position in the organic listings way, way down. Imagine going from the top 10 to below 10,000. Now consider that all of your competitors are still enjoying high PRs and hence are listed well above you. Is that fair? Does Google have the right to punish sites because they tried to cheat an algorithm that Google won't talk about? What if AT&T decided to not list businesses in their phone books because they didn't like how the names were spelled or the names didn't fit well in the columns? Look at the website and you will see they are doing plenty to get a reasonable page rank - keyword rich text, headers and footers, encouraging links to their site from other sites. A zero PR means Google is doing something very deliberate and definitely based on something they find offensive in some way. When you become one of the de facto paths to most business’s success then there must be some degree of accountability. Otherwise the free market and capitalism just isn’t all that free. I don’t fault Google for trying to get sites to play fair – but perhaps their rules of engagement need some tweaking. Why not just knock a few points off the PR when shenanigans are detected and notify the offender that the PR will continue to be discounted until they clean up their act. Revealing what the offenses are is not exposing the crown jewels – obviously the aspect of the PR algorithm being “violated” is public knowledge or the site wouldn’t be trying it. And being a little more diplomatic would help both sides of this problem.
Posted by: Kevin at October 28, 2006 02:56 AM