Another Google Lawsuit Over PageRank

MercuryNews and the AP report that KinderStart, a website aimed at helping parents care for young children, has sued Google for unfairly manipulating its PageRank. Though not a case involving copyright, its worth discussing here because of the implications the case may have over the "automated-ness" of Google's search business and the financial impact of Google's rankings.

KinderStart's lawsuit (find here) will have to overcome the decision in SearchKing v. Google (no longer available online as far as I can tell, what's up with that LawMeme?), a case from three years ago where SearchKing sued over its demotion in Google's search rankings. Google prevailed in that case and central to the decision was the judge's finding that:

While Google's decision to intentionally deviate [sic] from its mathematical algorithm in decreasing SearchKing's PageRank may raise questions about the 'truth' of the PageRank system, there is no conceivable way to prove that the relative significance assigned to a given web site is false. A statement of relative significance, as represented by the PageRank, is inherently subjective in nature. Accordingly, the Court concludes that Google's PageRanks are entitled to First Amendment protection. (page 9)

Thus the court said that PageRanks are opinions, not facts, because it is demonstrably impossible to prove that one website is more relevant than another. Even though Google claims that its PageRank technology is "objective," the court disagreed. But by finding that PageRank is opinion, there is then no room for a plaintiff to claim that it is entitled to any certain search ranking.

Further:

SearchKing consciously accepted the risk of operating a business that is largely dependent on a factor (PageRank) over which it admittedly has no control. The fact that the company with sole control over that factor has unilaterally changed the impact that the factor has on SearchKing's business cannot give rise to a claim for tortious interference with contractual relations. (page 12)

And:

While it could be argued that Google acted maliciously and wrongfully as to SearchKing, the Court concludes that Google's actions were nonetheless privileged [under the First Amendment].

(these quotes were pulled from LawMeme's great summary of the decision. Also read LawMeme's breakdown of the initial suit)

SearchKing was in the business of driving its member sites to the top of Google search result pages by exploiting PageRank features. Such SEO's (Search Engine Optimizers) are paid to elevate pages in search engines. Whether these businesses are legit ("white hat SEO's") or nefarious in their schemes ("black hat SEO's") is not an issue for me right now, but I offer some links to interesting discussions on the issue to satisfy curiosity:

• Google-Opoly: The Game No One but Google Can Play by Dahlia Lithwick (Slate)
• In Contest, Players Vie to Position A Site Atop Google Search by Lee Gomes (WSJ, $ only)
• Google v. Evil by Josh McHugh (Wired)

And here's how to manipulate Google to rankle your friends (or enemies):

• Google Time Bomb by John Hiler (Slate)

There doesn't seem to be much distinguishing KinderStart from SearchKing based on the news reports so far. KindStart may not be manipulating its PageRank to the extent that SearchKing did, but Paul Kedrosky points out that:

Google is the dominant search player, but unless you can demonstrate abusive behavior in how it re-ranks sites, alleging that Google is liable for damages for your lowered position in search results seems like sour grapes from a quasi link-farm.

I thank Paul for his funny and apt description of what this KinderStart page is. Such a page undoubtedly would boost KinderStart's PageRank regardless of the value of the content on its site, and is precisely the kind of behavior Google tries to filter in order to provide its users with relevant search results.

One issue that may distinuish KinderStart's case is the increased web presence of Google, as opposed to three years ago, begging the question of what kind of responsibility Google has in its position of dominance. Jack Schofeld at Guardian Unlimited ponders this point, while describing Google as:

... the police force, sole witness, judge, jury, court of appeal and executioner [when it comes to punishing sites for manipulating the ranking system].

When a site loses 70% of its traffic on Google's say so and is relegated to the "sandbox" (where misbehaving sites go for a timeout) what kind of options does a website have if Google refuses to explain its actions?

Could such unilateral action when the financial stakes are so high be a sign that regulation is on the horizon? Possibly. The Blog Bussiness Summit says that:

Whatever the verdict in such cases, it’s clear that people have come to rely on Google so much that they see it almost as a utility - like hot and cold running water. At some point, that may mean that the search engine industry will become a regulated one.

True, Google has the power to make or break a business, but is that enough for regulation? Water and electricity are regulated not to ensure that businesses can operate, but so that I can shower and cook. Regulation is supposed to protect the public interest and in the case of Google the public interest lies in maintaining the community system of checks and balances (as described on Google's own page explaining how PageRank works) as opposed to shifting the balance towards businesses trying to make a buck by manipulating the system. Of course, once Google's primary business morphs from search to primarily providing directed advertising to web users based on the massive amounts of information it collects (once Google figures out its legal issues with search, I expect Google will help advertisers subsidize free content on the net like they do on TV), regulation may be needed.

Of course, this whole suit could disappear if Google clearly communicated when and why certain sites are demoted. Marketing Pilgrim offers this sensible solution. But in doing so Google may give up too much. Providing such notice would thrust Google into a much more active role in maintaining its search rankings, which could cause problems in defending copyright lawsuits such as in Parker v Google where the court focused on Google's lack of volition.

Not much else of interest up on the web so far, that I've found at least, but the complaint was only filed this week. As a general observation on the case though, I think that Shari Claire Lewis has nailed it in this article on SearchKing when she says:

Businesses must recognize, as reflected in two decisions issued last year by a U.S. district court in Oklahoma, that there are limits to what they can demand without paying for what they want.

Hopefully this KinderStart case will answer the questions of how far Google has to go in defending the demotion of a site and what happens when an innocent site is suspected of PageRank manipulation.

Here's also some other links that may be of interest:

• Businesses Have No Say in Search Engine Rankings, another great analysis of the SearchKing case with a great point that there are limits to what businesses can demand without paying for what they want.
• Google's Giant Sandbox, giving what seems like a good description of the "sandbox" phenomenon.
• How to Play in Google's Sandbox, noting all the ways to get out of the sandbox.
• The Importance of Link Building, learn how to develop good link practices to gain a high search ranking without abusing the system and ending up in the sandbox.
• Bob Massa Interview, read the head of SearchKing discuss SEO's and the SearchKing v Google case.