More on KinderStart

One aspect of the KinderStart lawsuit against Google that seems especially sticky is the first amendment claims on which both sides rely. Google asserts that the first amendment protects its editorial decisions to rank sites as it wishes, while KinderStart argues that Google violates its first amendment right to be heard by relegating it to the rumored "sandbox." Critics suggest that since KinderStart relies on Google for 70% of its traffic, it suffers from a bad business model more than anything else and that such a reliance on Google shows that it is unable to attract repeat visitors, a sign that its content isn't very useful to begin with.

An apt comparison would seem to be Nielsen and its TV ratings system. In fact, Nielsen might be in a larger monopoly position than Google since its ratings data are the basis for nearly all TV advertising rates, while Google serves up barely more than 40% of internet searches. Nielsen has faced its share of lawsuits, some based on minority discrimination and antitrust/monopoly violations, but it has so far been successful in defending itself.

TV stations rely on Nielsen much the same way KinderStart relies on Google. If my favorite TV show gets poor ratings, it gets canceled and one shouldn't go and sue Nielsen over that. If your favorite website is no longer relevant, it gets demoted to a lesser result page and one shouldn't go and sue Google over that either.

The difference would seem to be that Google retains a bit more editorial discretion over its results than Nielsen does in that it will demote websites based on deceptive practices (such as link farming). However, when Nielsen rolled out its new local people meter system that would account for minority viewership more accurately it was sued because it would disrupt conventional wisdom about which shows people were actually watching. Thus, there one can see the tension - and inevitable lawsuit - whenever a data company that is central to a given business changes its measurement system, regardless of whether the new system is more accurate, because it disrupts traditional revenue streams.

Is it possible to view increased accuracy in data reporting as a first amendment violation? In defamation, truth is an absolute defense. To think that this principle does not apply to information brokers accused of an antitrust violation, such as Google and Nielsen, would be an outrageous proposition. So in looking at KinderStart and how it blatantly appropriates information from other websites, as I've mentioned before, the question is whether this kind of behavior should be favored over Google's efforts to return relevant results. With the increasing amount of plagiarized material online, one would hope that such accuracy would be a major benefit not only to users, but to other businesses that actually bother to provide useful content.