[Dean's World] Ron Coleman: Is Google a utility?

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Posted by Ron Coleman:
Is Google a utility?
http://www.deanesmay.com/posts/1151897179.shtml


   Utility

   We [1]wrote about the [2]Kinderstart lawsuit against Google, claiming
   an unfairly depressed Google search rank, last March. There have been
   further, very interesting, developments, exemplified by this [3]this
   colloquy reported by Dawn Kawamoto: 

     [4]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 [5]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 -- [6]dare we say it? A
   [7]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 [8]consent decree with the
   government, and not [9]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 [10]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 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 [11]invent new bases for recovery to "fix up"
   perceived injustices that those pokey legislatures haven't gotten to?
   We'll keep watching.
   (Originally posted on [12]Likelihood of Confusion on Sunday.)

References

   1. http://www.likelihoodofconfusion.com/?p=398
   2. http://www.kinderstart.com/
   3. http://news.com.com/2100-1025_3-6090239.html
   4. http://dw.com.com/redir?destUrl=http%3A%2F%2Fwww.wsgr.com%2Fwsgr%2FDBIndex.aspx%3FSectionName%3Dattorneys%2FBIOS%2F2736.htm&siteId=3&oId=2100-1025-6090239&ontId=1023&lop=nl.ex
   5. http://www.investordictionary.com/definition/commodity.aspx
   6. http://www.reason.com/0111/fe.dk.antitrusts.shtml
   7. http://en.wikipedia.org/wiki/Monopoly
   8. http://www.ims.ccsu.edu/Tele.htm
   9. http://www.fool.com/news/commentary/2006/commentary06050105.htm?source=eptyholnk303100&logvisit=y&npu=y&bounce=y&bounce2=y
  10. http://www.likelihoodofconfusion.com/?p=497
  11. http://www.likelihoodofconfusion.com/?p=263
  12. file://localhost/var/www/powerblogs/deanesmay/posts/www.likelihoodofconfusion.com