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KinderStart And Google Differ On Opinion

David A. Utter
Staff Writer
Published: 2006-03-22

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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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About the Author:
David Utter is a staff writer for WebProNews covering technology and business.

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