KinderStart Lawsuit Dismissed (With Leave to Amend)

By Eric Goldman

KinderStart v. Google, Case 5:06-cv-02057-JF (N.D. Cal. motion to dismiss granted July 13, 2006)

The judge granted Google’s motion to dismiss in the KinderStart lawsuit. Given the weakness of the lawsuit and the tenor of the judge’s comments at the June 30 hearing, this is hardly surprising. However, the judge gave KinderStart the ability to amend its complaint, so this lawsuit is hardly over yet.

Frankly, there are very few novel or surprising aspects of this ruling. For example, the judge rejected the claim that Google was a state actor, but this ruling is entirely consistent with the dozen or so precedents involving private Internet companies. The other rulings seemed very sensible and fairly predictable from the complaint. It’s pretty clear that the judge thinks that some of KinderStart’s claims have no chance even with repleading, but the judge apparently has decided to give KinderStart that chance rather than just shutting the door.

[One side note: it’s unclear from the opinion if all of the claims are amendable, or only those where the judge expressly said that KinderStart could amend–the Sherman Act claim, the common carrier claim, the 17045 claim, the good faith and fair dealing claim, the defamation claim and the negligent interference with prospective economic advantage claim. My reading is that KinderStart can amend all of its claims, but the opinion is ambiguous on that point.]

Despite the relatively unremarkable nature of Google’s win, one area of the opinion definitely caught my attention. The judge’s reactions to the defamation claim were not wholly favorable to Google and could signal some risk to Google. The judge says:

whether Kinderstart can maintain a claim for defamation may turn on facts outside the pleadings. Google’s statement as to whether a particular website is “worth your time” necessarily reflects its subjective judgment as to what factors make a website important. Viewed in this way, a PageRank reflects Google’s opinion. However, it is possible a PageRank reasonably could be interpreted as a factual statement insofar as it purports to tell a user “how Google’s algorithms assess the importance of the page you’re viewing.” This interpretation would be bolstered by evidence supporting Google’s alleged representations that PageRank is “objective,” and that a reasonable person thus might understand Google’s display of a ‘0’ PageRank for to be a statement that ‘0’ is the (unmodified) output of Google’s algorithm. If it could be shown, as Kinderstart alleges, that Google is changing that output by manual intervention, then such a statement might be provably false.

Reading between the lines, I think the judge may be saying it he doesn’t like Google’s apparent duplicity on its PageRank descriptions. Google claims PageRank is objective in its public statements, yet in court Google claims that PageRank is its subjective opinion. This duplicity just doesn’t look good for Google. It doesn’t mean that such duplicity is legally actionable, but it may take some skillful advocacy to swing the judge around on the defamation claim. Ultimately, I suspect Google will easily prevail, but in part I base that assessment on the skill of Google’s counsel.

The judge also deferred consideration of Google’s anti-SLAPP motions to strike. I think doing so raises the stakes on KinderStart’s repleading. The implicit threat is that the judge will not pursue the anti-SLAPP sanctions if KinderStart drops those claims, but the sanctions will be back on the table if KinderStart continues to pursue those claims and ultimately loses. So KinderStart will have to do some hard thinking about whether it wants to risk reviving the claims subject to anti-SLAPP.

Despite the possible hiccup on the defamation claim, this is still a strong opinion for Google. On the other hand, given the judge’s relatively weak conclusions based on the early procedural posture of this case, it’s not the kind of door-slamming precedent that I’m sure Google would love to have right now.

UPDATE: As usual, Danny Sullivan weighs in with a thoughtful and thorough critique. He makes a lot of great points, but one of his points really stood out. Why doesn’t Google just drop all public references/displays to specific pages’ PageRank scores? They are confusing, cause lots of silly angst, and are now creating legal headaches.

UPDATE 2: If you want more reading on this topic, my article on search engine bias documents some of the ways that search engines (including Google) manually manipulate search results. I then offer my normative explanation for why manual manipulation is both necessary and beneficial.