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

Kinderstart.com is a not-particularly-well-designed Web site that would=20
like to be a kind of portal for parents. It is better known, however,=20
for filing a zany lawsuit against Google claiming that Google lowered=20
its PageRank score. That act, Kinderstart claims, violated a panoply of=20
laws including the Sherman Act and the First Amendment.

A federal judge today didn't take too kindly to that kind of legal=20
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=20
the Sherman Act, 15 U.S.C. =A7 2, the elements of which are: (1)=20
possession of monopoly power in the relevant market, (2) willful=20
acquisition or maintenance of that power, and (3) causal antitrust=20
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=20
Ranking Market, the Search Ad Market, and the Search Engine Market...

Kinderstart argues that by refusing to remedy the alleged =93Blockage=94 =
of=20
Kinderstart=92s website, Google has violated Section 2 under the =93refus=
al=20
to deal=94 doctrine as set forth in Aspen Skiing Co. v. Aspen Highlands=20
Skiing Corp., 472 U.S. 585 (1985).  In Aspen, the larger of two ski=20
resorts with a long-standing, bilateral, cooperative and profitable=20
arrangement to market joint ski passes later refused to deal with the=20
smaller resort=97not even allowing it to buy tickets at listed retail=20
prices.  Id.  However, as the Supreme Court has noted, =93Aspen is at or =

near the outer boundary of =A7 2 liability.=94  Verizon Communications In=
c.=20
v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 399 (2004).=20
Moreover, the facts alleged by Kinderstart are distinguishable from=20
those in Aspen. Kinderstart has alleged neither that Google sold=20
PageRanks or Results Page listings to Kinderstart or others nor that=20
Google refused to sell these at listed prices.  In fact, Kinderstart=20
itself notes that Google denies ever selling PageRanks or listings at=20
all.  FAC =B6 27.  Additionally, there is no allegation that the only=20
written agreement between the parties, the AdSense agreement, is no=20
longer in place. 4

Accordingly, Kinderstart=92s monopolization claims under the Sherman Act =

will be dismissed with leave to amend.  In light of this disposition,=20
the Court need not reach Google=92s argument that Kinderstart=92s claims =
are=20
precluded by the holding of Official Airlines Guides, Inc. v. FTC, 630=20
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=20
violated the Communications Act, 47 U.S.C. =A7=A7 201, et seq.  A common =

carrier =93makes a public offering to provide communications facilities=20
whereby all members of the public who choose to employ such facilities=20
may communicate or transmit intelligence of their own design and=20
choosing.=94  FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979).  As=20
discussed above, while Kinderstart has alleged that Google invites the=20
public to search using its search engine, it has not alleged facts that=20
would show Google invites the public to speak using its search engine.=20
Thus, Kinderstart has not alleged that Google provides facilities of the =

type covered by the Communications Act.
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