Originally posted 2013-09-18 11:43:39. Republished by Blog Post Promoter
I asked the following question more than a little while back in connection with the Kinderstart lawsuit against Google, which asserted a supposed right to a certain “objective” Google ranking (I’ve made slight non-substantive touchups):
Is Google a Utility?
[O]nce a company becomes a sort of common carrier — I am pushing this here — is there really no point at which all purchasers of its services should be treated equally? … Avoiding a ruling that in any way characterizes Google search results as commodities is also evidently on the mind of the Google attorney who’s insisting, despite the obvious risk of doing so, that Google results, in some cases, are subjective, not objective.
And what is that risk? A ruling, or a suggestion (I don’t know enough about the case to know if this is a claim) that, far from a commodity like potatoes, electric power or fake Vuitton bags, Google results are commodities’ evil twin, a service so unique to Google, and so very, very central to the “market” (definition of which is the heart and sould of the matter) that Google has a — dare we say it? A monopoly! For let’s not kid ourselves: If it were 1966, not 2006, this search advertising business — with both Google and Yahoo at the table — would already be negotiating a consent decree with the government, and not the kind Google is looking for. . . .
But we digress. Add this to the story from last week involving an advertiser’s complaint that Yahoo! buying search terms on Google to redirect users searching for a third website that competes with Yahoo!, and what do you have? New dimensions, or at least invitations by lawyers to open new ones, in unfair competition, antitrust, tortious interference and other traditional areas of law.
Will judges build on the existing doctrines of law and merely apply them to new industries and new technologies? Or will they do as they have done in trademark, and invent new bases for recovery to “fix up” perceived injustices that those pokey legislatures haven’t gotten to? We’ll keep watching.
Turns out there was nothing to watch; no there there — it was a dumb idea, it was recognized as dumb early on, and Google, so far, is not a utility.