LIKELIHOOD OF CONFUSION® in 2006: “Is Google a utility?”
I posted this in August, 2006. I don’t think the question has been answered yet:
We wrote about the Kinderstart lawsuit against Google, claiming an unfairly depressed Google search rank, last March. There have been further, very interesting, developments, exemplified by this this colloquy reported by Dawn Kawamoto:
David Kramer, a Wilson Sonsini attorney also representing Google, said the search giant’s PageRank system is subjective, using a combination of reviews into whether a Web site is adhering to its guidelines and is worth a user’s time to view.
“Google is constantly evaluating Web sites for standards and quality, which is entirely subjective,” Kramer said.
The judge probed Kramer on the topic of whether Google engages in misleading behavior, and whether it uses objective criteria to evaluate sites–rather than solely relying on subjective reasoning.
“What if, say, Google says it uses facts one through 10 to evaluate a site, but actually uses number 11 to decide its rank. Isn’t that misleading?” the judge asked.
Kramer, however, said Google readers understand that the site’s ranking system is subjective and based on Google’s opinion about whether a site is worth viewing.
A repeated theme in the article is that Google keeps urging that it has “no obligation” to “promote its rivals.” Which it certainly doesn’t seem as if it does. On the other hand, once 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? (Very un-free-markety of me to suggest this, but I’m the conservative blogger who’s not a libertarian.) 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. If certain fringe elements were to succeed in their political ambitions, don’t be surprised if that yet happens, doing for the next decade what the Clinton Administration’s Microsoft brililant, and of course progressive, antitrust suit did for the ’90’s.
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.
UPDATE: Yeah? See? Uh-huh!!