Judge dismisses Kinderstart.com suit against Google over page ranking [fs]

[Declan McCullagh <declan () well com>]

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

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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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