KinderStart v. Google Oct. 27 Hearing Transcript

By Eric Goldman

KinderStart.com LLC v. Google, Inc., No. C 06-2057 RS (N.D. Cal. hearing on motion to dismiss Oct. 27, 2006)

[Some other newly posted resources: Google’s motion to dismiss the second amended complaint, and KinderStart’s opposition to that motion]

On October 27, 2006, there was a hearing in the KinderStart v. Google case to discuss Google’s motion to dismiss KinderStart’s second amended complaint. See the transcript.

This is a fascinating hearing and one that isn’t easily summarized. If you’re interested, read the whole thing. Some highlights:

* KinderStart’s counsel restricts the case only to websites who are dropped to PR0, which KinderStart argues is a mathematical impossibility. (As Google’s counsel points out, this isn’t a mathematical impossibility at all). So any other Google decisions about rankings (like dropping a PR10 to a PR1) now should be outside the scope of this case.

* There is some interesting discussion about 47 USC 230(c)(2), the underlitigated sister to 230(c)(1). Google argued in its motion to dismiss that 230(c)(2) protects all filtering decisions, and Google’s algorithm is just a filter that should be immunized. Normally, a 230 defense would support a motion to dismiss, but the way I read the transcript, the judge does not feel comfortable ruling on a 230(c)(2) defense at such an early stage in the case. This is too bad because we would all love to know more about 230(c)(2), and a determination that 230(c)(2) absolutely protects search engine algorithms would be HUGE.

* The judge explored Google’s anti-SLAPP motion, one of the issues left open from the last dismissal order. The judge expressed some hesitation about the anti-SLAPP motion, but my reading of the transcript is that Google said the judge could ignore the anti-SLAPP motion if he just grants the motion to dismiss with prejudice (in other words, Google will be happy if the case is finally ended, even if Google doesn’t get the other anti-SLAPP sanctions).

The judge indicates that he will try to issue his opinion by year end. So who is going to have a merry Christmas? (I’m still betting that Google will).

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