Practically everybody who uses the Internet agrees that Google deserves its status as the top Web search engine. Practically everybody but the Oklahoma-based online advertising network SearchKing, which filed suit last fall decrying the way Google ranks the Web sites it searches. More than anything, the suit proves that when you pit the questionable virtue of an Internet parasite against the dubious integrity of an Internet monopolist, you're left with a case that makes everyone just a little bit nauseous.
The legal question is whether Google's lead in the search-and-ranking business gives it unfair dominance over every Internet business, and the legal answer appears to be no. But the issues raised in the suit should concern anyone who worries about the ways in which the Internet promotes free speech in fabulous new ways while allowing a handful of companies to control access to that speech.
PageRank is Google's page ranking system: the nerd equivalent of a Victorian dance card. Google uses it to measure the popularity and value of a particular Web site, and its accuracy has made Google the world's largest and most widely utilized search engine, fielding about 150 million search requests a day. PageRank is a free feature on the Google toolbar, and it's based on a top-secret algorithm that can evaluate over 3 billion Web pages for relevance and quality in under a second, enabling Google to instantly put the most useful sites at the very top of its results page. Since no business is interested in being ranked 370th on Google's list, earning a top-rank on Google is the Internet equivalent of printing money. High rankings mean more traffic, means more advertisers, means more high rankings. Low rankings mean you're face-down in the gutter of the information superhighway, watching the world pass you by.
In a rather shameless piece of Internet chutzpah, last summer SearchKing created the "PR Ad Network," which took advantage of the way Google works to boost their customer's PageRanks. SearchKing did this by linking its clients to other partner sites already deemed "high quality" by Google. Since one of the things PageRank expressly measures is the numbers of links with other quality sites, SearchKing in effect has its clients collude to trick Google into boosting everyone's ratings. (Non-business Webmasters have played this game to boost their Google ranking, too. See this Slate story.) Google had always prided itself on utilizing the "democratic" nature of the Web to measure a Web site's value based on the quality of its links, counting links as "votes" for other sites. So, it naturally resented SearchKing's efforts to manipulate that value and resented even more its ability to profit from it.
As SearchKing found its own Google ranking plummeting, and the rankings of many of the Web sites it hosted tanking, too, CEO Robert Massa sued Google last October for dropping its rank from an 8 (out of 10) to a 4. Practically speaking, this means you'd have had to scroll past 20 other sites in a Google search of the word "SearchKing" before reaching a link to his homepage. In December, Google restored SearchKing's ranking, but Massa refused to drop the suit, arguing that the legal principle remains inviolate: Google has too much arbitrary power to make or destroy a business. As he noted at the time: "So they've restored it for now. Next month, what's to stop them from reducing my ranking again?"
Massa's complaint claims that when Google lowered his company's ranking, Web searchers had a tougher time finding his company, which resulted in a drop in the value of SearchKing. Massaalleges "tortious interference with contractual relations" and seeks an injunction against Google, damages in excess of $75,000, punitive damages, and attorneys' fees.
A reply brief recently filed by Google concedes that it manipulated SearchKing's ranking. But Google argues that the First Amendment protects its right to assemble rankings as "evaluative opinion" and that the dissemination of that opinion cannot be tortious. Lucky for Google, there's a 10th Circuit case on point, involving a school district's suit against a bond rating agency. The school district's claim was thrown out, and Google argues that its own rankings of Web pages are no different than a credit agency's judgment about bond ratings. Objective information is collected, sorted, and analyzed, until it stops being fact and becomes an opinion. Tenth Circuit decisions cover the federal district court hearing the SearchKing suit, so the court will be hard pressed to disagree.
Google's brief also insists that the company "has no obligation to even include SearchKing in its search engine services, let alone include it with an importance level desired by SearchKing." And finally, Google argues pretty persuasively that since it owns the algorithm, a court injunction forcing it to rank SearchKing based on SearchKing's arbitrary preferences will irreparably harm Google's ability to "maintain the integrity of its service." Pretty soon, they argue, every company in America would be suing Google for a 10 ranking, eviscerating its ranking services.
It's hard to feel too bad for SearchKing, which deliberately jiggered the Web to produce high Google rankings in clear violation of Google's policies. The PageRank toolbar contains a user agreement expressly prohibiting users from manipulating the rankings, stipulating: "You may not modify, copy, publish, license, create derivative works from or sell any information or software associated with Google Toolbar, without first obtaining written permission from Google."
But the underlying and troubling policy issues in the suit have to do with Google's monopoly—or what Josh McHugh called a "Google-opoly" in a recent piece in Wired. Sure, they are entitled to pick and choose which Web sites they rank and how they do it, but is it healthy for a single company to control what the rest of the world may actually read and not read? Once everyone agrees that Google rankings stand for some universal benchmark, can Google go in and tweak those benchmarks just to punish its competitors? Some nervous pundits have suggested that maybe Google ought to be regulated, as a utility or common carrier; that it's accrued too much power to be permitted to capriciously manipulate its rankings—as it did to SearchKing. A terrific analysis of the case from James Grimmelmann on LawMeme suggests that Google is more than just sorting Internet content: It's a "gatekeeper" that effectively bars access to anything ranked lower than 200 by its ranking system.
Massa seems to commit legal hara-kiri on his Web site by conceding that Google's opinions are protected by the First Amendment. He rests instead on the argument that the arbitrary use of the PageRank system is morally wrong. "I believe that once any person, group or company attains a certain level of influence in a specific segment of a market, and are fully aware of the power of that influence to cause harm to a third party, then they have a legal and moral obligation to dispense that opinion very carefully," he says. Well, maybe; but you can't craft an injunction that forces someone to dispense "careful opinions." Which may be why the judge in the case denied SearchKing's request for a preliminary injunction two weeks ago.
No one doubts SearchKing is going to get clobbered in court. Their legal arguments are vague and the legal ground they rest upon is shaky. But the real test of justice in this case will be this: Will their ranking drop down to zero the day after Google prevails at trial?