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KinderStart Case Against Google Dismissed

WebProNews Staff — Wed, 21 Mar 2007 11:42:46 +0000

Almost a year after KinderStart sued Google for dropping it from the search engine’s index, the presiding judge has put an end to the case by siding with Google’s requests.

KinderStart Case Against Google Dismissed

"Over? Did you say 'over'? Nothing is over until we decide it is!" -- Bluto Blutarsky gives his memorable speech in Animal House

Even though it wasn’t over for the Deltas, it is over for KinderStart. Unless KinderStart wants to press the issue by appealing the decision, their lawsuit against Google has reached the finish line.

Matt Cutts, who provided a declaration for the case, posted a brief note along with a couple of excerpts from the decision by US District Court Judge Jeremy Fogel:

The judge in the KinderStart case granted Google’s motion to dismiss without leave to amend…I believe the judge also granted Google’s motion for sanctions against the plaintiff and the plaintiff’s attorney

Santa Clara University School of Law professor Eric Goldman agreed with Matt’s assessment:

Not only did Judge Fogel dismiss the complaint without leave to amend (meaning that the case is over unless KinderStart appeals to the Ninth Circuit), but he issued Rule 11 sanctions against KinderStart’s counsel Gregory Yu–meaning that Yu will have to pay some of Google’s legal fees (the amount will be determined later). The substantive result isn’t surprising given the complete lack of merit in the lawsuit from day 1, but the Rule 11 sanctions show, once again, that Google plays hardball against plaintiffs when threatened (it also shows that Judge Fogel doesn’t tolerate nonsense in his courtroom–good for him!).

KinderStart had accused Google of infringing free speech, antitrust activity, defamation, and other claims based on its site being dropped by Google to a PageRank of zero. This wiped out search-related traffic coming to the site from Google.

As Goldman noted in an earlier post about the case, "it’s precarious to build a business on free search engine traffic. My advice is to enjoy the ride so long as it lasts, but don’t plan on the good times lasting forever, and definitely don’t expect a ton of sympathy when the gravy train ends."

It does look like KinderStart and Yu should expect some mail from Google, bearing the words "Please Remit" on it.

Judge Dismisses KinderStart’s Google Claims

Andy Beal — Mon, 17 Jul 2006 14:10:48 +0000

KinderStart.com’s attempts to convince a judge that Google had unfairly lowered its PageRank, were dismissed last week.

However, the judge did leave the door open for KinderStart to amend its case and clarify some of its claims.

The site got a chance to amend its case on several other points, including on a complaint that Google is a ‘common carrier’ and as such is banned from discriminating against the services that it transmits.

Andy Beal is an internet marketing consultant and considered one of the world’s most respected and interactive search engine marketing experts. Andy has worked with many Fortune 1000 companies such as Motorola, CitiFinancial, Lowes, Alaska Air, DeWALT, NBC and Experian.

You can read his internet marketing blog at Marketing Pilgrim and reach him at andy.beal@gmail.com.

Ranking Suit Against Google Dismissed

WebProNews Staff — Fri, 14 Jul 2006 13:58:41 +0000

KinderStart will amend its complaint against Google for effectively dropping the KinderStart website from its index when Google assigned the company a zero PageRank.

Kinderstart Lawsuit Shown The Door

Can KinderStart make a defamation suit stick to Google? Will Google see a complete dismissal of charges after the next court date in September? Give us your verdict at WebProWorld.

The lawsuit against Google by KinderStart may have been dismissed, but it has not ended. Attorneys for the plaintiff noted in a statement made after the judge’s decision that they “have the full opportunity to amend all Nine Counts in the class action complaint.”

However, the attorneys may wish to attend to their website first. At press time, the GlawInfo.com website returns a message that the page has been suspended. That’s not a good impression to make on visitors looking for more information.

In their statement, KinderStart’s legal team appear to have chosen a new tack as they amend the complaint ahead of a September 29th court date:

A most serious concern for Google now is defamation. The decision suggests that, if properly alleged, Google may be defaming a whole class of Websites sacked with a ’0′ PageRank. If Plaintiffs show that Google manually tampered with even a single Website’s PageRank, Google’s entire claim to the world of “objectivity” of its search results and rankings could collapse.

The defamation claim is not as far-fetched as one may think at first glance. Eric Goldman, Santa Clara University assistant professor and director of the High Technology Law Institute, reviewed the KinderStart opinion, and said “there are very few novel or surprising aspects of this ruling.”

He also examined the defamation issue in the case:

Despite the relatively unremarkable nature of Google’s win, one area of the opinion definitely caught my attention. The judge’s reactions to the defamation claim were not wholly favorable to Google and could signal some risk to Google.

Goldman excerpted the judge’s opinion as it pertained to defamation, and dissected its potential for causing Google some headaches:

Reading between the lines, I think the judge may be saying it he doesn’t like Google’s apparent duplicity on its PageRank descriptions. Google claims PageRank is objective in its public statements, yet in court Google claims that PageRank is its subjective opinion. This duplicity just doesn’t look good for Google.

Goldman sees Google as ultimately winning the case, due to the “skill of Google’s counsel.” But it’s mostly a sure thing now, instead of definitely.

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David Utter is a staff writer for WebProNews covering technology and business.

KinderStart And Google Differ On Opinion

WebProNews Staff — Wed, 22 Mar 2006 20:00:45 +0000

Attorney Greg Yu characterized PageRank as “not a mere statement of opinion” due to the nature of how Google’s algorithm calculates PageRank.

The 26-page complaint against Google blames it for KinderStart.com’s traffic and revenue woes. Attorney Yu said in a phone interview he has heard from other sites regarding the case, but as of yet no one else has committed to siding with KinderStart’s action publicly.

KinderStart wants the US District Court in San Jose to treat the suit as a class action. That certification, of course, takes time. Yu is facing the prospect of the next four months being spent on attaining that status.

Much of the commentary online to date has been substantially on Google’s side. Many outlets have dismissed the merits of the case first-hand. Does KinderStart have a case?

The complaint claimed KinderStart was one of the “choicest Internet destinations” for a variety of visitors with an interest in child issues. After the site’s PageRank dropped to zero, it suffered a loss of traffic and revenue.

PageRank is at issue because KinderStart said it is not a form of free speech. However, a previous case considered this issue in another instance of a site claiming loss of PageRank harmed its business. The presiding judge dismissed the case brought by Search King against Google in 2003, CNet reported:

“PageRanks are opinions–opinions of the significance of particular Web sites as they correspond to a search query,” according to the decision filed in the U.S. Western District Court of Oklahoma.

“The court simply finds there is no conceivable way to prove that the relative significance assigned to a given Web site is false,” the decision said. “Accordingly, the court concludes Google’s PageRanks are entitled to full constitutional protection.”

The suit uses the terms Blocked or Blockage to describe Google’s actions, because of Google’s status as the largest and most heavily used search engine on the Internet. When this happens to a site, usually the website has run afoul of Google’s guidelines.

KinderStart claimed it has not “hired or utilized any services for search engine optimization that actually and effectively increased visits or views” on the site. This is important; look at the phrasing, “actually and effectively increased.” They also claim to have never violated AdSense Program Policies with content or links, or carried any “cloaked” pages.

And, KinderStart has not to the best of its knowledge violated Google’s Webmaster Guidelines. Essentially they claim Google has simply and arbitrarily dropped their PageRank to zero, making them invisible in Google’s search result pages.

Another issue involves Google’s communications, or lack thereof, with websites that have experienced this drop in PageRank. One opinion expressed by an observer of the case to me said that the case is more important when it comes to Google’s policies. A site goes to PageRank zero and Google provides the site no information to the site owners that it happened or even why.

Since reinclusion requires the submission of a form to someone at Google to review, my observer thinks someone in a backroom of the Googleplex also handles the drops manually:

“It wouldn’t be difficult to write a simple routine in Perl that would do a quick whois lookup of the offending domain, since Google is a registrar itself, and send a form letter to the administrative and technical contacts saying, ‘Your PageRank has been set to zero; please review your site for violations of our Webmaster Guidelines, correct those, and submit your site for reinclusion.

“That way, Google doesn’t have to give up its precious trade secrets and would actually be helpful to webmasters who have been dropped, but at least they would have some notice that it had happened.”

Does Google’s dominance in search constitute a monopoly? No one Yahoos a topic or a prospective date, they Google them. But Yahoo and other search options exist. None have been named in this lawsuit, and KinderStart.com appears at the top of queries for it on Yahoo Search and MSN Search. Yet traffic has still dropped.

KinderStart wants class action status and a jury trial. Google’s formal response has not been codified yet beyond the expected statement that it will defend itself vigorously against the action. The court may consider the Search King case where the subject of opinions arose in its decision favoring Google:

Google claims that PageRank is commercial speech, protected by the First Amendment. What makes this argument such a doozy is Google has a case directly on point: Jefferson County School Dist. No. R-I v. Moody’s Investor’s Setvices, Inc., 175 F.3d 848 (10th Cir. 1999). An Oklahoma school district sued a bond rating agency after the agency reduced the district’s credit rating and claimed various damages from the district’s increased troubles selling bonds. There, the trial court threw out the case on a motion to dismiss for failure to state a claim, and the 10th Circuit Court of Appeals upheld the decision. That case is about as good a case as Google could have hoped for.

Google claims that its assessments of the “value” of a web page are very much like a credit agency’s assessments of the creditworthiness of a bond issuer. Both collect objective data, but then sift that data through subjectively-determined and secret formuale in order to come up with a ranking they present to the outside world. Like bond ratings, PageRanks are opinions. They’re professional opinions, but they remain opinions.

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David Utter is a staff writer for WebProNews covering technology and business.

KinderStart Lawsuit Googles Up Opinions

WebProNews Staff — Mon, 20 Mar 2006 20:20:48 +0000

As one lawsuit ends, Google finds another one cropping up in the wake of its victory over the Department of Justice; plenty of opinions have followed the news of the new litigation.

In recent weeks, Google has settled a click fraud lawsuit and escaped from the DoJ’s clutches in the legal arena.

Now Google has yet another invitation to return to U.S. District Court in San Jose, which has become a virtual second home for members of Google’s counsel. A directory of kid-oriented resources, KinderStart.com, saw its PageRank in Google plummet to zero around March 2005.

KinderStart wants monetary damages and information on how Google’s PageRank technology works. A Google spokesperson said, “we believe the lawsuit is without merit and we will defend against it vigorously.”

Several blogs that follow the search and tech industry weighed in with opinions on the suit. Gaping Void’s Hugh MacLeod suggested some people may have the wrong idea about Google and search rankings:

So people have a constitutional right to Googlejuice? So Googlejuice = Free Speech? That to me seems an insult to the notion of Liberty.

RepriseMedia’s Search Views echoed MacLeod’s statement:

Just because Google’s ranking system (is) inscrutable and they’re sometimes difficult to deal with doesn’t mean a site has a Constitutional right to an excellent search rank. At least, we don’t think it does…we’ll see what the courts have to say.

The Kelsey Group’s Greg Sterling posited that a decision for the plaintiff could be disastrous:

Think about the precedent: It would be the end of organic search – every other site would litigate when its ranking fell.

Our publisher made one point about KinderStart.com that hasn’t been addressed yet:

Interestingly, the KinderStart.com website features Google Adwords.

Those Google ads are still running on the site. We are attempting to find out more from Gregory Yu, who is representing KinderStart.com. He did not return requests for comment from WebProNews by press time.

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David Utter is a staff writer for WebProNews covering technology and business.

KinderStart Sues Google Over PageRank

Rich Ord — Sat, 18 Mar 2006 16:09:59 +0000

KinderStart filed suit yesterday in U.S. District Court in San Jose alleging that Google improperly “blacklisted” its website.

We have not yet obtained a copy of the legal filing but news reports confusingly use the term “blacklisted”. An AP wire story states that KinderStart claims Google blacklisted its website which would mean the site would not be found in Google. However, KinderStart.com has over 43,000 pages in Google.

>>> Your comments here <<<

The legal issue probably centers on PageRank because all 43,000 KinderStart.com pages have a rank of zero. Google famously uses PageRank to help determine results for web searches. A rank of zero would likely mean KinderStart would rarely show up in the top ten results for any search.

The civil complaint asks the court to be certified as a class action “representing the owners of all Web sites blacklisted by Google since January 2001″.

The argument KinderStart makes is based on antitrust principles that Google has grown so big and powerful that it must abide by fairness standards not normally required of business. These new standards might include publishing specific rules for websites to follow in order not to be blacklisted or have PageRank removed. Google could also be required to notify websites with reasons for blacklisting. They may also have to offer specific ways to remedy blacklisting.

Interestingly, the KinderStart.com website features Google Adwords.

From AP reports:

“The world is becoming increasingly ‘Googlized,”‘ said Gregory Yu, a lawyer for KinderStart. “For most people, that has been a good thing, but not for everyone.”

A Google spokesman said the company hadn’t seen the suit and had no immediate comment.

KinderStart alleges Google has engaged in anticompetitive behavior and misled the public by positioning its search engine as an objective source for finding Internet content. The suit seeks unspecified financial damages and a court order that would require Google to change its ways.

… KinderStart’s lawsuit alleges Google’s policing efforts have penalized Web sites that have done nothing wrong. To make matters worse, the suit alleges the banished sites can’t determine how they can restore their standings because the company doesn’t explain its actions.

Please comment on this article at my blog …

Rich Ord is the CEO of iEntry, Inc. which publishes over 200 websites and email newsletters.

Rich also publishes his blog WebProBlog which focuses on internet business and marketing trends.