Kinderstart v. Google

Eric Goldman discusses reports of oral argument in the Kinderstart v. Google case; the judge's comments about misleadingness hint that the false advertising claim may survive. I wish I'd written up my thoughts earlier, because then I'd seem prescient: I didn't think Google had a clear knockout on the false advertising claims. One of Kinderstart’s arguments is that Google falsely claims to consumers to have the best search engine because of its sophisticated, inexorable algorithms. Then it jiggers the results of those algorithms, secretly, to punish certain sites.

I see no reason why, in theory, this could not found a false advertising claim. (I do think materiality would be an upwards climb.) Google's statements about its ranking system, if made to attract consumers and advertisers, were commercial speech. And consumers, at least, were harmed if they didn’t get what they were expecting; it is a basic principle of modern consumer protection law that people are entitled to the truth, even when they’re ultimately satisfied with a product advertised under false pretenses. The remaining question is whether that principle applies to ad-supported businesses, since consumers “paid” Google only in their time, and advertisers pay Google for eyeballs. My consumer-protectionist heart tells me it should, though I admit I’m unaware of relevant precedent.

Google’s best argument is thus that Kinderstart is the wrong plaintiff. Google’s main overall claim is that rankings are opinions, thus can’t be true or false, but even if that’s true, Google’s statements about how it derives its rankings surely can be true or false. (Imagine if a retail store claimed to stock only garments purchased by expert Parisian buyers, but in fact stocked whatever the garment factories had as overstock.) Kinderstart, however, may not have been harmed by any falsehood, since it seems hard to connect its Adsense revenues, or lack thereof, with Google’s misrepresentations. If anything, consumers fooled into trusting Google would seem to increase Adsense revenue, all else being equal.

Google claims First Amendment protection for its rankings, but First Amendment protection for books doesn't mean I can advertise a copy of The Da Vinci Code and instead deliver a copy of the Bible. (I am simplifying: One might credibly argue that Google's commercial speech about a product itself protected by the First Amendment deserves special leeway, but Google's First Amendment arguments to date haven't taken that tack.)

There is one variant of the false advertising claim that could involve direct harm to Kinderstart, though it would also make Google’s First Amendment arguments relevant. If Google represents that the first few search results are the best matches to a query, consumers may believe this and not bother going to low-ranked Kinderstart. This is true even if the first few results aren’t that useful; consumers may trust Google, and think that, if the first few results are bad, the next will be even worse. A similar theory led to success for the plaintiff in a case involving false claims of waterproofness – rather than purchasing a truly waterproof suit, the court reasoned, a consumer disgusted with the failure of a suit allegedly “the best waterproof suit available” might just assume that all waterproofing technology was inadequate. W.L. Gore & Assocs., Inc. v. Totes, Inc., 788 F.Supp. 800 (D.Del.1992).

Google's motion papers make some typically aggressive arguments. For instance, Google seeks dismissal of the complaint under California's anti-SLAPP law. Currently, anti-SLAPP protections don't apply to commercial speech by entities in the business of selling or leasing. Google argues that its rankings aren't commercial speech; more far-reaching, it argues that it is not "primarily engaged in the business of selling or leasing goods or services," because Google offers its search engine free to everyone in the world. But Google is not a charity or a late-night eBay hobbyist-seller; it's a billion-dollar business. The exemption was not designed to help advertising-supported businesses like Google.

Another provision of the anti-SLAPP law provides that commercial speech based on the creation, dissemination, or promotion of a literary work gets full anti-SLAPP coverage. Even though ads are protected by copyright, one California case held that "literary work" for purposes of the anti-SLAPP law means works "of a kind that might be subject to copyright protection.” Foundation for Taxpayer & Consumer Rights v. Garamendi, 132 Cal. App. 4th 1375, 1391 (2005). Google argues that, because its index and the results of individual searches are copyrightable literary works, it is entitled to anti-SLAPP protection. The claim about Google's copyright in the individual search results strikes me as extreme. Specific search results are generated only from user queries (which can be quite bizarre indeed). Like ads, moreover, the index may not be the type of literary work the California legislature intended to give the full protection of the anti-SLAPP statute; I wouldn’t bet heavily on this being Google’s winning argument.