[IP] Judge dismisses Kinderstart.com suit against Google over page ranking [fs]
Begin forwarded message:
From: Declan McCullagh <declan@xxxxxxxx>
Date: July 14, 2006 4:15:45 AM EDT
To: Politech <politech@xxxxxxxxxxxxxxx>
Subject: [Politech] Judge dismisses Kinderstart.com suit against
Google over page ranking [fs]
Kinderstart.com is a not-particularly-well-designed Web site that
would like to be a kind of portal for parents. It is better known,
however, for filing a zany lawsuit against Google claiming that
Google lowered its PageRank score. That act, Kinderstart claims,
violated a panoply of laws including the Sherman Act and the First
Amendment.
A federal judge today didn't take too kindly to that kind of legal
hand-waving. Below is an excerpt from the opinion.
-Declan
---
http://www.politechbot.com/docs/google.kinderstart.order.071406.pdf
Kinderstart also asserts a claim for monopolization under Section 2
of the Sherman Act, 15 U.S.C. § 2, the elements of which are: (1)
possession of monopoly power in the relevant market, (2) willful
acquisition or maintenance of that power, and (3) causal antitrust
injury. Forsyth, 114 F.3d at 1475. As with attempted
monopolization, a plaintiff claiming monopolization must first define
the relevant market. Id. Kinderstart alleges monopolization of
three markets: the Website Ranking Market, the Search Ad Market, and
the Search Engine Market...
Kinderstart argues that by refusing to remedy the alleged “Blockage”
of Kinderstart’s website, Google has violated Section 2 under the
“refusal to deal” doctrine as set forth in Aspen Skiing Co. v. Aspen
Highlands Skiing Corp., 472 U.S. 585 (1985). In Aspen, the larger of
two ski resorts with a long-standing, bilateral, cooperative and
profitable arrangement to market joint ski passes later refused to
deal with the smaller resort—not even allowing it to buy tickets at
listed retail prices. Id. However, as the Supreme Court has noted,
“Aspen is at or near the outer boundary of § 2 liability.” Verizon
Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S.
398, 399 (2004). Moreover, the facts alleged by Kinderstart are
distinguishable from those in Aspen. Kinderstart has alleged neither
that Google sold PageRanks or Results Page listings to Kinderstart or
others nor that Google refused to sell these at listed prices. In
fact, Kinderstart itself notes that Google denies ever selling
PageRanks or listings at all. FAC ¶ 27. Additionally, there is no
allegation that the only written agreement between the parties, the
AdSense agreement, is no longer in place. 4
Accordingly, Kinderstart’s monopolization claims under the Sherman
Act will be dismissed with leave to amend. In light of this
disposition, the Court need not reach Google’s argument that
Kinderstart’s claims are precluded by the holding of Official
Airlines Guides, Inc. v. FTC, 630 F.2d 920, 5 or because the conduct
in question is protected expression.6
Kinderstart claims that Google is a common carrier and, as such, has
violated the Communications Act, 47 U.S.C. §§ 201, et seq. A common
carrier “makes a public offering to provide communications facilities
whereby all members of the public who choose to employ such
facilities may communicate or transmit intelligence of their own
design and choosing.” FCC v. Midwest Video Corp., 440 U.S. 689, 701
(1979). As discussed above, while Kinderstart has alleged that
Google invites the public to search using its search engine, it has
not alleged facts that would show Google invites the public to speak
using its search engine. Thus, Kinderstart has not alleged that
Google provides facilities of the type covered by the Communications
Act.
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