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By: Bob Sakayama
2009-11-28 22:37:24
If you do a Pacer search for actions against Google, you find an interesting thing. The only case available relevant to rank loss (the others were removed upon request) is one in which Google trounces plaintiff Kinderstart's claims, which range from violation of the right to free speech, monopolization, unfair competition, unfair practices, breach of implied covenant of good faith, defamation and libel, and negligent interference with prospective economical advantage. Here is the first filing where you can see the claims.

There are 15 documents in the series. Kinderstart files as a class action, but clearly their ranks were slammed and they claim a $5,000,000 loss. But it appears that they spent a lot of money only to give Google some powerful precedents that are important and long lasting.

Steve Gordon, the attorney who reviewed the action, explained to me that this is an intimidating example of a slam dunk defense against each claim. That it is the only document available on the Pacer system relevant to rank loss is also emblematic of a significant effort to control the information concerning these kinds of actions.

The most compelling argument, and the one that those who want to sue for loss of rank will have to contend with, is the first amendment right to free speech. The claim is the same as that used by the ratings agencies that gave toxic assets AAA ratings. The defense is that the rating or the rank is an opinion, protected speech. It's simple, brilliant, and for now will probably hold.

It's not that Google is bulletproof though. The real battle on the legal front will most likely be on the policy front, and the question is, "Should Google be regulated?"

Before you answer that, remember that each life-changing industry from the past (railroads, telephone, oil, automobile) evolved on its own into a monopoly that required regulation to enforce ethical behavior. If you see the penalties that we see, and the nontransparent nature of our relationship with Google, you will realize that we are already at the monopolization point, without the regulation. For the public good, is it time to view search engines as regulated utilities?

I discovered this document while researching background on the feasibility of legal action against Google. It's more of a policy paper that discusses how free speech and media, in a commerce environment, naturally evolve away from democratic goals due to monied interests.

It's a long read, but makes some excellent points. One of them is that secrecy never works in the public interest. Consider the fact that harmful actions taken by a secretive monopoly cannot even be detected. Google buys YouTube. Why are the YouTube videos now ranking higher than those from other platforms? It may be because they actually rank higher (all of them?) or perhaps they get more PR from Google after the purchase. But if you are harmed by this rank adjustment, you have no way to even discover how or why, let alone address it.

The compelling conclusion is that, influence of money, combined by secrecy and non-transparency leads to an environment that is very unlikely to self correct, and that there may be a strong argument, in the public interest, to provide accountability, if not transparency. When your business can disappear overnight with your ranks, and you have no recourse or means of discovery perhaps it's time to require accountability.

Blog_id: 11 | Posted: 2009-11-28 22:37:24 | Views (7,009) | Comments (2)  
Comment By: MicroHuge
re: Legal Discoveries And The Argument To Regulate Google
(posted 2009-12-01 22:33:48)

You need to argue that Google has a "duty" to perform. Me thinks there's an argument there that might avert the head-on 1st Amendment battering ram. But who has the bucks? Good read though.

Comment By: perfiddy
re: Legal Discoveries And The Argument To Regulate Google
(posted 2009-12-13 22:03:51)

We need to remove the oligarchs from everything, certainly the search. Strict, enforced regulation, transparency, and high standards, like what we should be seeing in the regulation of the financial world. But is that coming anytime soon? Only when the disaster arrives do we go there, Dude. And then the monied interest buy their way into our government, and the laws are written by the oligarchs, to regulate the oligarchs. And the fox gets to guard the hen house.

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