Person v. Google Hearing

By Eric Goldman

Person v. Google, C 06-7297 JF (RS) (N.D. Cal.)

Carl Person is on a losing streak. First, he sought the Green Party nomination for New York Attorney General, but he lost that election in April 2006. Then, he sued Google for antitrust violations based on his frustrations trying to buy advertising. As I blogged about before, last October this lawsuit got soundly thumped for improper venue due to the mandatory venue clause in Google’s AdWords contract. Finally, he sued New York for banning payment for petition signature collection and lost that lawsuit in October as well.

With that run of luck, one might think that Person would redirect his energies elsewhere. But, he blames Google for costing him the election because he was the “best qualified” candidate (as he claimed at the hearing) and Google’s ad pricing structure kept him from getting the word out cost-effectively. And apparently he has some free time on his hands given that he doesn’t have the day job of being NY’s Attorney General.

So, despite insurmountable odds, he is still trying to bust Google for antitrust violations. After his lawsuit was rejected for improper venue, Person’s case was transferred to Google’s home court in the Northern District of California, where it is now before Judge Fogel–who, not coincidentally, is also handling the KinderStart v. Google lawsuit.

Yesterday, there was a 20 minute hearing in the case to decide if the judge would grant Google’s motion to dismiss or permit Person to amend his complaint. The judge immediately removed all suspense when he began the hearing by saying that he will ask Person for a amended complaint. However, it will be interesting to see if Judge Fogel changes his mind after his first-hand exposure to Person’s advocacy, which bordered on the ridiculous (and occasionally crossed over). Person’s rambling and unfocused arguments made it crystal-clear that his case has no hope, so the judge would be doing himself and a lot of other people a favor by putting a clean end to the case now. But Fogel probably will give Person one more chance before clearing his docket.

Judge Fogel asked Person about the definition of the relevant market, saying that Person couldn’t define the market tautologically to be co-extensive with Google’s offerings. Person answered the question in two different ways–first, he said the “pay-per-click” market; then, he said the “keyword targeted Internet advertising” market. Either way, these definitions include lots of ancillary markets, such as second-tier search engines, adware and intermediate sites like Shopping.com, so either definition collectively reduces Google’s footprint in the market. Jonathan Jacobson, one of Google’s lawyers, went further and said the relevant market definition was irrelevant because Person claims he was a customer of Google, not a competitor, and thus lacks antitrust standing.

Judge Fogel appears to be considering the interactions of this case with the KinderStart case. Judge Fogel observed that Person may be arguing that Google has gotten so big that it’s an essential medium for people to get their message out, so Fogel asked what recourse consumers have if they think Google’s practices are unfair. Jacobson replied that the consumer would have to take it up with the legislature. I think this answer is right but incomplete. Even legislators have constitutional limits in their ability to regulate the media, so in some cases, consumers have no effective remedy against “unfair” media other than to (in this situation) vote with their mouses.

So both the KinderStart and Person cases are now sitting on Fogel’s desk. I remain hopeful he’ll see the wisdom of shutting down both cases quickly.