KinderStart: The return

KinderStart’s amended complaint against Google sure is … longer than the original. Eric Goldman covers some relevant points.

The amended complaint contains an extended discussion of Google’s Book Search program which is, I think, supposed to support the idea that Google is a state actor because it’s partnered with state university libraries, as well as to make Google seem like a pirate indifferent to others’ rights. KinderStart alleges, in the same vein, that numerous schools and libraries tell their students and patrons to use Google to look for information and even teach classes on Google use. I guess that means that based on the FDA’s food pyramid and health classes in public schools, Dole and Chiquita are state actors too!

There are portions of the complaint that I found incomprehensible. Example:

63. Defendant further engaged in and continues to engage in anticompetitive and exclusionary practices and conduct as follows

a) Identifying various Websites unfairly and arbitrarily deemed by Google in its sole discretion to be spam or marginal viewer content, and removing them from Google’s index in order to redirect users and valuable search traffic to sites competing against such Websites;

b) Lodging and profiting further from banked AdSense Advertisements onto such sites without the full knowledge of AdSense Partners, by welcoming a stream of search users re-directed from other search engines onto these low-quality sites;

c) Appropriating low-quality sites as a means to unfairly increase the fees paid by AdSense partners to Google for no meaningful absolute gain in uniquely acquired and paid for search traffic;

d) Capturing and retaining such traffic redirected from low-quality sites sent via search results of other major competitors, thereby intentionally degrading the search user experience for these competitors that leads them to migrate to Google as their search engine of choice in the short or long term.

On information and belief, over 50% of sites that have been banned or de-indexed by Google continue to feed in detoured and redirected search user traffic amounting to large amounts of click-through revenue from the AdSense program.

Is this trying to say that Google doesn’t pay AdSense partners according to their contracts? How can AdSense partners have to pay fees for traffic they don’t get? What the heck is “uniquely acquired and paid for search traffic” anyway? If half of banned sites running AdSense are still making money from having AdSense, doesn’t that suggest that the alleged link between AdSense and ranking in Google results isn’t that tight?

A more suggestive allegation: Google discriminates against certain unnamed political and religious positions. Again, this is a case where the complaint needed narrative rather than invective.

Also in the amended complaint: A detailed listing of many times and many venues in which Google has said that its rankings are completely automatic and without censorship. As I’ve noted, I have some sympathy for this claim, but I doubted KinderStart could make a go of it under state unfair competition law. Sensing this difficulty, the amended complaint asserts Lanham Act claims as well, on behalf of (1) a class of directories and search engines who’ve had their PageRanks dinged by Google, and (2) a class of sites who lost AdSense revenue because their PageRanks were decreased by Google. Class (2) seems pretty clearly to flunk the standard standing test for the Lanham Act; those are customers, not competitors. Class (1) is within the group whose interests are protected by the Lanham Act, but it may stumble on causation/harm, a separate requirement that often precludes Lanham Act suits by non-market leaders: Unless Yahoo! is in Class (1), it will be hard to prove that even the aggregate group lost business because of Google’s misrepresentations about comprehensiveness and automated ranking.

If Google continues to tell searchers one thing about how search results are generated and tell webmasters another, it might behoove the FTC – the only entity with a realistic chance of affecting Google – to look into the matter. The FTC has already expressed concern about failure to disclose paid placement. Google does disclose and segregate paid search results (though the complaint now alleges that Google accepts compensation for placement as the top search result – I’d love to see the evidence supporting that claim, because if it were true it would be quite explosive). The concern here is a subtler type of distortion, one that might not be all that material to consumers – but it’s still probably a good idea to say that the index is almost entirely automated, except when manual corrections are made to honor webmaster requests, obey relevant law, or deter manipulation by advertisers. In communications to consumers, that’s the type of thing that could easily be done with an asterisked disclaimer.

The Lanham Act count also alleges that assigning a PageRank of zero to sites like KinderStart constitutes a misrepresentation by a competitor about KinderStart’s goods and services: “Don’t go there; it’s not really relevant to your search.” (This also is the basis for new defamation and libel counts. Here’s a question: How often do Google users see that KinderStart has a PageRank of zero, if they’re so effectively diverted from it?) Again, not a crazy Lanham Act claim, and this one doesn’t have the same standing/harm problems as the claims about Google’s representations about itself. Here Google’s contention that its rankings are pure opinion protected by the First Amendment will be tested – and given that rankings of competitors seem like commercial speech, Google’s rights are probably at their lowest ebb. One possible argument: Given that Google doesn’t control search inquiries and that KinderStart pages are mixed in with lots of other non-search engine/directory pages for any given query, it’s uniquely impossible to separate out rankings of search engines from (fully-protected) rankings of noncompetitors.

The amended state-law unfair competition count starts with the alleged deceptiveness of Google’s promise that AdSense is a good way to make money, without a simultaneous disclosure that Google arbitrarily manipulates PageRank. This count also adds in the rest of the allegations of Google’s anticompetitive, arbitrary, and deceptive practices.

Up next: Google will surely renew its anti-SLAPP motion. It will be a fight worth watching. Maybe they could put oral argument up on Google Video?