KinderStart Second Amended Complaint

By Eric Goldman

KinderStart v. Google, Case 5:06-cv-02057-JF (N.D. Cal. second amended complaint filed Sept 1, 2006)

After its last complaint was dismissed in its entirety, not surprisingly KinderStart is trying again with a second amended complaint—a 63 page behemoth. I’ve been bearish on this lawsuit all along, and after a cursory read, I wasn’t persuaded to change my views.

In particular, I’m very surprised that KinderStart continues to allege that Google is a state actor (in support of a “Violation of Rights of Free Speech” claim). This claim is a clear loser, and I thought the judge has already signaled that view pretty strongly. Among other weak supporting evidence, the complaint tries to argue that the Google Library project creates sufficiently involved relationships with public libraries to convert Google into a state actor. The Google Library project is so fundamentally disconnected from the algorithmic ranking decisions that this argument struck me as embarrassingly irrelevant.

One other potshot: the complaint touts the importance of the Open Directory Project (see Para. 52), saying among other things, “Any new search engine must have access to and index the largest possible and most comprehensive database of Websites, which is the OPD.” [the ODP/OPD transposition recurs throughout the paragraph] I wasn’t sure if this was a joke. Not only does Google have zero control over the ODP, but the ODP has become virtually irrelevant—it’s a prime example of how collaborative projects can slowly degrade into junk (I’ve predicted a similar fate for Wikipedia).

So, what happens next? I expect Google will file a motion to dismiss, which the judge will grant, at least in part (at minimum, to eliminate the Violation of Free Speech claim). I expect Google to go on the counter-offensive and renew its anti-SLAPP motions. As for exactly when Google is able to shut down this lawsuit, well, stay tuned.

UPDATE: Rebecca has a detailed discussion.