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"Suit over poor Google ranking may go forward"
Company sues google over drop in search rankings
markbaa




msg:745347
 11:46 pm on Jul 3, 2006 (gmt 0)

"A federal judge in California hinted that a parenting Web site that's suing Google over a poor ranking in the search giant's massive index would be able to proceed with its lawsuit."

[news.zdnet.com...]

This could open a can of worms :)

 

whitenight




msg:745437
 10:41 pm on Jul 7, 2006 (gmt 0)

A contract exists - even if you don't know about it, much less sign anything - if one party performs a service for a consideration by another

Ahhh...the "Estoppel" principle. Now that's a powerful argument to use because it's so open to the interpretation of the individual judges/courts.

I know a few attys. who with enough resources could give G's attys a run for their money using this principle.

gregbo




msg:745438
 10:46 pm on Jul 7, 2006 (gmt 0)

Google doesn't owe traffic to anyone - we all get that. HOWEVER, Google has a motto - do no evil, in my opinion it is not enough to do no evil with a motto like that, you must be seen to do no evil.

Fine. So KinderStart should start a PR campaign downplaying Google's algorithms and recommending that people use other engines to find them. No need for lawyers.

BigDave




msg:745439
 12:59 am on Jul 8, 2006 (gmt 0)

A good atty. with the right arguments could put a serious dent in G's inablities as an algo to properly rank websites (Freedom of speech or not)

I'd love to hear your reasoning for this one. You know, actually explaining how they would be able to do that.

It would not oly require good lawyering on their part, but REALLY terrible lawyering on Google's part. They would have to completely forget to mention some of their obvious affirmitive defenses.

You see, the way it works is that just about any single successful affirmative defense will throw the whole case in their favor.

Obviously this "neighbor's cousin's friend" was savvy enough to convince the judge to hear their amended complaints.

Yeah, it takes lots of savvy to convince a judge to grant you what the FRCP 15 tells him that he is just about required to accept it.

Ahhh...the "Estoppel" principle. Now that's a powerful argument to use because it's so open to the interpretation of the individual judges/courts.

Thankfully, most district court judges have a much better grasp of estoppel than you do. Even you would not think it would be collateral estoppel or laches, so you must be talking about equitable or promissory estoppel. But equitable estopple is only a defense, so it must be promissory

What did Google promise to Kinderstart? What did they tell them that would give kinderstart a valid claim?

You can't just claim "estoppel" you need to have a cause to claim it.

If Google was suing kinderstart, they might have an actual equitable estoppel defense, but it would very much depend on what they were getting sued for.

Oh yeah,

whitenight




msg:745440
 1:45 am on Jul 8, 2006 (gmt 0)

You see, the way it works is that just about any single successful affirmative defense will throw the whole case in their favor

Ahh. I see you know your way around legal jargon ;)

Then you know affirmative defenses, are just that...Boilerplate defenses accorded to any defendant. Law is a funny thing. Affirmative defenses are sometimes all one needs. Othertimes, they are absolutely useless.

Yeah, it takes lots of savvy to convince a judge to grant you what the FRCP 15 tells him that he is just about required to accept it

Lol i was just responding to the comment that he was "neighbor's cousin's girlfriend's blah blah"

You'd be surprised at the amount of high priced lawyers who wouldn't assert this claim.
Let alone convince the judge to grant it.

The fact they he granted it, shows that the judge didn't feel the case was frivilous and should be summarily dismissed.

Thankfully, most district court judges have a much better grasp of estoppel than you do

Well, one would hope so, but last I checked most lawyers/judges don't have a clear interpretation of estoppel because it depends on the individual merits of the case.

I could ask 10 recent bar graduates to explain estoppel and get 10 different answers. Many of which would contradict each other. I'm sure you know that too. ;)

What did Google promise to Kinderstart? What did they tell them that would give kinderstart a valid claim?

Lol, where did I mention estoppel for the kinderstart case? I was just making a general comment about using it as an actionable argument in future cases (just in case any lawyers are skimming this thread.lol. )

Google isn't bulletproof. And we have yet to see 1/100th of the possible issues they could get sued over. As pundits like to say, we are still in the "wild west" of internet law and the "rules" and precedents are still yet to be made.

So far I've only seen weak cases come against G in court. Nothing with any teeth or sound logical arguments, but rest assured, some company with their own legal staff on retainer will visit these forums in the future and build a solid case. :)

europeforvisitors




msg:745441
 2:00 am on Jul 8, 2006 (gmt 0)

So far I've only seen weak cases come against G in court. Nothing with any teeth or sound logical arguments, but rest assured, some company with their own legal staff on retainer will visit these forums in the future and build a solid case. :)

Sure, and Google may start suing SEOs and their clients for trying to hijack Google SERPs. Maybe they can begin with KinderStart. :-)

whitenight




msg:745442
 2:10 am on Jul 8, 2006 (gmt 0)

Sure, and Google may start suing SEOs and their clients for trying to hijack Google SERPs. Maybe they can begin with KinderStart. :-)

lol they certainly could. Of course, the SEOs might ask for some "proprietary" info during depositions.
Explanations of how the algos work.
If they are open to manipulation,
how similar sites with similar "blueprints" rank differently
etc etc.

All bad PR for the closed-mouth G.

But I'd be glued to CNBC to hear the debate.

BigDave




msg:745443
 2:42 am on Jul 8, 2006 (gmt 0)

Lol, where did I mention estoppel for the kinderstart case?

Uh, it is what this thread is about.

But aside from that, what has google promised anyone that they have not offered? That promise, almost invariably in the form of a written contract, is required for promissory estoppel.

Of course Google isn't bullet-proof, but they are a lot more careful about their legal standing than most at webmasterworld give them credit for. Part of the reason there are generally only weak cases against them is because the good lawyers realize that there aren't any easy cases against them. If there were, the lawsuits would already be lining up to get a piece ofthose deep pockets.

BigDave




msg:745444
 2:50 am on Jul 8, 2006 (gmt 0)

lol they certainly could. Of course, the SEOs might ask for some "proprietary" info during depositions.
Explanations of how the algos work.

Again, you know just enough to pretend you know what happens in court cases, but you are in fact, showing your ignorance.

Google would have absolutely no problem with getting a protective order on the release of such information, if they were even able to convince the court that such information was relevant. It would also be released as part of discovery, and not very likely to be part of the depositions.

Under the protective order, only the opposition lawyers and experts hired under a very strict NDA would be allowed to see the trade secret information. The lawyers are generally really good about not telling their clients about things under such protective orders because it can lead to personal civil liability for the value of those trade secrets as well as sanctions and possible disbarring. It does happen, but it is very rare.

whitenight




msg:745445
 3:09 am on Jul 8, 2006 (gmt 0)

Again, you know just enough to pretend you know what happens in court cases, but you are in fact, showing your ignorance

When you are done personally defaming me :P, you might want to actually read what I wrote.

Who said anything about their algo info. being "released"?!

I said "All bad PR for the closed-mouth G"
meaning, the general public (read: investors) has this belief (mistaken or not) that G has some "miraculous" ability to determine the "best" or "most relevant" sites and that they are not "gamed" or "influenced" by the thousands of SEOs who engage in "white hat" or "black hat" optimization which do influence the algos.

G doesn't want those little tidbits of information to become public knowledge.
That reflects poorly on G's stock. Period.

(Which is why i said CNBC and not the court channel)
----

Now, to address the personal issue. My knowledge is quite sufficient. I have personally set more case law precedent with "untouchable" companies like G, than I care to name (heck, I even have a popular forum on it).

When and if I feel G is becoming the next "big brother" you will perhaps see my case on the news.
Not to win, or make money.
Simply to set caselaw for the next "little guy" who comes along.

That's how 'law' is set. One judge, like the Kindercare case, makes a ruling which defines what can and can not be argued in the next. Unless you end up in a different district court where his caselaw holds no particular power.;)

And like I said before, until we read the amended complaint, there's nothing to comment on really either way.

BigDave




msg:745446
 4:07 am on Jul 8, 2006 (gmt 0)

Then I suggest that you sue google and show us how it is done.

By the way, that is now how caselaw works as far as precident, so again I do not believe you. If a judge rules on it, other judges MAY refer to that ruling. Even within the same district they are not bound by it. Even that very same judge may decide to rule differently in the next case.

Why is that? because it is not binding precident. The only way it becomes binding precident is when the circuit courts or the supreme court makes a ruling.

But I am impressed. There aren't very many individuals out there that aren't lawyers that are involved in setting a lot of caselaw precidents. There are certainly many large corporations that do that over many years, but I cannot think of any individuals named in a court case that have made it into more than one common caselaw reference.

whitenight




msg:745447
 4:21 am on Jul 8, 2006 (gmt 0)

By the way, that is now how caselaw works as far as precident, so again I do not believe you. If a judge rules on it, other judges MAY refer to that ruling. Even within the same district they are not bound by it. Even that very same judge may decide to rule differently in the next case

I'll assume you're a lawyer as we are getting into semantics. We both know, unless it's a ergegious mistake that somehow slipped through the cracks, district courts almost always refer and adhere to previous rulings within the same district court.

While other district courts put much less "weight" into those rulings.

Of course they are not bound to it. Roe v. Wade is a constitutional law that gets threatened to be changed every day.

I cannot think of any individuals named in a court case that have made it into more than one common caselaw reference

Don't know what to tell you. I can not think of any lawyers who know much about caselaws outside of their specific focus, so.....(why should they?)

And many who do not know specific caselaw within their expertise.

gregbo




msg:745448
 8:19 pm on Jul 8, 2006 (gmt 0)

Anyone can put in their own TOS that G has to rank them #1 on their SE for keyword1, keyword2, or keyword3 or be in violation of their website TOS and public domain law section X.XX.

This would not be a TOS. A TOS cannot specify what another company or organization is obliged to do, absent some contractual agreement.

Now if G had specified in its TOS that it had agreed to spider, index, and rank KinderStart with some guarantees or SLA, KinderStart might have a case.

A good atty. with the right arguments could put a serious dent in G's inablities as an algo to properly rank websites (Freedom of speech or not)

No one is denying that G has problems properly ranking websites. The issue is whether KinderStart has a legitimate claim for damages.

It should also be pointed out here that KinderStart has claimed a loss of business, which is not something that G has any control over. For all we know, fewer people searched for KinderStart with G; perhaps because they did not think G was good at ranking websites. What about all those people who in the past had found KinderStart with G? Why didn't they come back? Might this have something to do with the loss of business?

europeforvisitors




msg:745449
 8:39 pm on Jul 8, 2006 (gmt 0)

For all we know, fewer people searched for KinderStart with G; perhaps because they did not think G was good at ranking websites. What about all those people who in the past had found KinderStart with G? Why didn't they come back? Might this have something to do with the loss of business?

Maybe those questions will come up in the discovery process, if things ever get that far.

whitenight




msg:745450
 8:49 pm on Jul 8, 2006 (gmt 0)

absent some contractual agreement...

Hypothetically, indeed, my TOS could state that any website who scrapes my content for any profit-making activity has entered into a contractual agreement. One might argue that it's not my problem if g-bot can not read the TOS of my site. Is G's responsibility to adhere to the TOS of my website when using my content under the terms and conditions easily located on the website.

If that means, they need to hire a team of real people to read through every website's TOS then that's their issue.... Hypothetically of course ;)

The issue is whether KinderStart has a legitimate claim for damages

Perhaps for KinderStart and G. But for me, what will be more interesting is the judge's rulings and comments. Kinderstart may be a whiny, cry-baby with a snowball's chance in hell of winning, but there's much more at stake here than Kinderstart's personal battle. The judge's opinions of the how's and why's is the real "meat" of the case.

BigDave




msg:745451
 11:01 pm on Jul 8, 2006 (gmt 0)

Hypothetically, indeed, my TOS could state that any website who scrapes my content for any profit-making activity has entered into a contractual agreement. One might argue that it's not my problem if g-bot can not read the TOS of my site. Is G's responsibility to adhere to the TOS of my website when using my content under the terms and conditions easily located on the website.

On the not so hypothetical side, none of that would stand up in court.

Your TOS are only going to a contract, and only in a VERY limited sense, if they somehow can be shown to have read through it and agreed to the terms, i.e. a click through license.

Basically, you can grant someone additional rights with your TOS, and if they agree to the TOS they can grant some rights to you.

But if they do not agree to the TOS, your TOS cannot in any way limit the rights that they already have. And there is a lot of caselaw around this already, so I doubt that you could add anthing more to it.

If google can access your content without having to agree to any license, then they are not going to be bound by the terms of that license. At least one case where google kicked a lawyer's butt halfway around Nevada.

You can put in your TOS that anyone accessing your website owes you their house. You could even put it in the click through license, so they have to agree to it. Go ask your lawyers how well that would work.

incrediBILL




msg:745452
 11:56 pm on Jul 8, 2006 (gmt 0)

Forget your TOS, do the same thing photographers do, slap copyright notices everywhere, scatter in the page even and set a price for USAGE. You post usage prices per page, paragraph, or any portion of content, AND you MUST file a legal copyright to back this up.

When someone is caught using your stuff, you send them a bill, and when they refuse to pay, you simply sue them for unpaid usage of stolen content.

If it works for images, photographers tend to get $1500 per, so it sure should work for text as well.

piatkow




msg:745453
 12:02 am on Jul 9, 2006 (gmt 0)

Varies by country. In the UK the sample that gets quoted in search results would most likely come under the same exemptions that permit quotes in book reviews.

whitenight




msg:745454
 12:11 am on Jul 9, 2006 (gmt 0)

Your TOS are only going to a contract, and only in a VERY limited sense, if they somehow can be shown to have read through it and agreed to the terms, i.e. a click through license

Says you? Whoops, so are you now admitting there is a contract? Hmm. Be careful what you admit to, now where back into Estoppel territory again.

Click through license? You mean the Estoppel By Silence that worked in G's favor? Last I checked, “Googlebot,” (acts)like an ordinary Internet user, ....

If google can access your content without having to agree to any license, then they are not going to be bound by the terms of that license. At least one case where google kicked a lawyer's butt halfway around Nevada

Ahh now we get to crux of the matter.

Have you taken a gander at the many "G-bot doesn't obey my meta-tags" threads recently?
Or the "G is now showing a page I asked to be removed twice now" threads?
Or perhaps an adventurous soul would like to pursue the
"G is indexing pages like "https:" that have no links to them ie. indexing them via the PR status tool"

Think a good lawyer could get enough affidavits concerning those issues from site owners on this forum?

-----

Edited to add -- I particularly like this last one for 'ranking'... I've heard a few people here say they mistakenly got dupe penalities because they visited another copy of a page with their PR status tool on and yet that page had no links to it. Therefore, was NOT accessible through any acceptable definition of how SEs find content.

BigDave




msg:745455
 1:45 am on Jul 9, 2006 (gmt 0)

Says you? Whoops, so are you now admitting there is a contract? Hmm. Be careful what you admit to, now where back into Estoppel territory again.

Yes, a license is a very limited form of contract. One that only grants additional rights. The licensor is the one making the promise, therefor the only one that can be sued under prommisory estoppel.

In other words, Google could sue youfor promissory Estoppel for violating your own TOS in relation to them. You cannot sue them for Promissory Estoppel for violating your TOS.

That would be another matter if you could show in any way that they actually agreed to the terms of your TOS.

Have you ever even looked up estoppel?

Click through license? You mean the Estoppel By Silence that worked in G's favor?

Estoppel By Silence is not it's own type of Estoppel, it is simply a term used for a subcategory of Equtable Estoppel, it is not it's own category. As I mentioned before, that is only something that can be used a a defense.

Do you understand that if you sue someone that you cannot charge them with something that is only allowed as a defense?

Last I checked, “Googlebot,” (acts)like an ordinary Internet user, ..

Yes, if you allow an ordinary internet user to access your content without agreeing to you TOS, they are not bound by them either. The only on that is bound by your TOS in that case is you.

Have you taken a gander at the many "G-bot doesn't obey my meta-tags" threads recently?
Or the "G is now showing a page I asked to be removed twice now" threads?
Or perhaps an adventurous soul would like to pursue the
"G is indexing pages like "https:" that have no links to them ie. indexing them via the PR status tool"

If those pages are publically accessible, there is a very strong chance that they are well within their rights. But that is all totally irrelevant to the topic of this thread, which is about Kinderstart's suit.

I can hardly wait to see where you try and take this next.

Might I suggest tthat if you think that Google is so vulnerable that you file a lawsuit against them. You seem to be quite used to going to court, and have such a great precident setting record. Seriously, if you are so sure about all these things, file the suit. Hell, make it a class action. Show us how it's done.

whitenight




msg:745456
 2:31 am on Jul 9, 2006 (gmt 0)

As I mentioned before, that is only something that can be used a a defense

Sry Counselor. You are simply wrong! Have you ever actually been the litigating atty in a case?

If those pages are publically accessible, there is a very strong chance that they are well within their rights.

Once again you failed to read what I wrote. And are injecting your own opinions stating them as fact. (A particular atty quality I despise...esp when they are wrong) The case of Fields v. Google gave a pretty explicit explanation of what "publically accessible" meant in terms of SEs.

I would like to see the SEs argue that listing https pages, pages with explicit "noarchive" "noindex" meta-tags, and pages only accessible and known thru one's control panel do not violate copyright infringement.

But that is all totally irrelevant to the topic of this thread, which is about Kinderstart's suit

Wow, considering we have yet to read the amended complaint or the judge's decision, nearly every post here in irrelevant. Coulda sworn I said that 2 pages ago...

But feel free to express more of your opinions as fact. Can't win the debate on merits so personally attack me. I'm on to you. ;)

kaled




msg:745457
 11:06 am on Jul 9, 2006 (gmt 0)

Whitenight said
now where back into Estoppel territory again

As with science and engineering, law requires precision. In the above quote "where" should read "we are" or "we're".

Everyone here makes typos but that is just plain wrong.

With power comes responsibility. All the major search engines have power - to my mind the only legal issue is do they use that power responsibly (and fairly). Right now, so far as I am aware, the only legislation that applies specifically to search engines is in countries like China. In the free world, search engines are almost entirely unregulated. I would prefer to see a self-imposed code of conduct but the search engines show no sign of moving in this direction, so I would be happy for legislators to do a little sabre-rattling.

Although the Kinderstart case may itself be frivolous, perhaps the judge has allowed it to proceed because he believes certain issues need to be discussed. I don't know if that happens in the US, but it is not unknown here in the UK.

Kaled.

PaulPA




msg:3000560
 11:57 pm on Jul 9, 2006 (gmt 0)

Wow - I go on vacation and when I come back to find that someone on July 3 stole my June 30 thunder!

[webmasterworld.com...]

europeforvisitors




msg:3000566
 12:21 am on Jul 10, 2006 (gmt 0)

With power comes responsibility. All the major search engines have power - to my mind the only legal issue is do they use that power responsibly (and fairly).

That isn't a legal issue, that's a moral issue. And it isn't even much of a moral issue, because--as a practical matter--the number of worthwhile search-engine rankings for any given keyphrase is limited, and no one has a rightful claim on them.

John F. Kennedy once said that "Life isn't fair." The local radio station doesn't have to play your garage band's music alongside that of the Beatles. For that matter, it doesn't have to play the Beatles' music, either, if it decides that Beatles fans are old and stodgy and don't fit the station's target audience. PUBLISHERS WEEKLY doesn't have to review your novel, ADVERTISING AGE doesn't have to mention your advertising agency, THE READER'S GUIDE TO PERIODICAL LITERATURE doesn't have to index your magazine, and Dow-Jones or Standard & Poor don't have to include your company in their stock-market indexes. Why would anyone be naive to think that search engines should behave (or should be required to behave) differently?

kaled




msg:3000578
 12:43 am on Jul 10, 2006 (gmt 0)

Why would anyone be naive to think that search engines should behave (or should be required to behave) differently?

Because, in Google's case, they claim that the algo is impartial and therefore the results are impartial.

I agree that the point I made is a moral one, not a legal one, however, all law is based on morality is it not? (e.g. theft is considered immoral therefore it is illegal, or if your prefer something more subtle, how about insider dealing.) Also, whilst life isn't fair, the law is often used in an attempt to improve fairness e.g. to guarantee the rights of minority groups. For instance, if Google banned all jewish websites, there would rightly be an outcry - one big enough to drag legislators into the argument.

Kaled.

europeforvisitors




msg:3000592
 1:07 am on Jul 10, 2006 (gmt 0)

Because, in Google's case, they claim that the algo is impartial and therefore the results are impartial.

Google's algorithm may be impartial, but Google refers to "hand-to-hand spam fighting" in its Webmaster Guidelines and clearly states: "if a site doesn't meet our quality guidelines, it may be blocked from the index." The words may have been revised from time to time, but Google's Webmaster Guidelines have been around (and have been well-publicized in Webmaster circles) for years.

Still, questions about Google's impartiality are of purely academic interest in the United States, where the KinderStart lawsuit was filed, because Google's search rankings are protected by the First Amendment of the U.S. Constitution. Google can't be required to live up to claims of "impartiality" any more than Fox News can be forced to live up to its slogan of "fair and balanced" news coverage. (Mind you, I'd say that Google does a much better job of living up to its claims than Fox News does.)

[edited by: europeforvisitors at 1:13 am (utc) on July 10, 2006]

gregbo




msg:3000614
 1:49 am on Jul 10, 2006 (gmt 0)

In the free world, search engines are almost entirely unregulated. I would prefer to see a self-imposed code of conduct but the search engines show no sign of moving in this direction, so I would be happy for legislators to do a little sabre-rattling.

How would legislation help here? Legislation is not going to fix bugs, nor will it bring searchers to the engine to search for KinderStart or any other site.

kaled




msg:3000645
 2:40 am on Jul 10, 2006 (gmt 0)

How would legislation help here?

Let's assume that Kinderstart was penalised, and rightly so if it breached the rules. An internal report of some sort must exist. Legislation (or a code of conduct) could require that report to be either published or sent to the webmaster. I agree that Google has the right to set its own standards, but the implementation of those standards should be open to scrutiny.

In the UK, broadcasters are required by law to be impartial where politics are concerned - the rules get even tighter in the run up to elections. Whilst search engines are not broadcasters, it is easy to imagine a situation in which political bias affected results. You could argue that search engines are more like newspapers (where political bias is accepted) however, I'm not comfortable with that analogy but I do accept it's a valid point of view. In any case, I do believe that eventually, legislation will be required to clearly define the rights and responsibilities of search engines (just as it currently exists for newspapers and broadcasters). In particular, I believe it will be necessary because the search engines won't bother to agree a common set of rules and enforcement practice themselves.

Kaled.

europeforvisitors




msg:3000658
 2:50 am on Jul 10, 2006 (gmt 0)

Kaled, this is a U.S. lawsuit, and British laws don't apply.

The First Amendment of the U.S. Constitution does, however.

kaled




msg:3000976
 11:32 am on Jul 10, 2006 (gmt 0)

Kaled, this is a U.S. lawsuit, and British laws don't apply.

I expressed an opinion and backed it up logically. However, given your rather obvious statement I presume you would concede that when Google operates in the UK, it does so under UK law. Indeed the US constitution certainly does not protect any company beyond US borders.

The right to free speech, in all western countries is intended to protect individuals, it is not intended to protect large companies at the expense of small companies (or individuals). Eventually, legislators will catch up with search technology and, once in a while, constitutions are ammended.

Kaled.

europeforvisitors




msg:3001208
 2:43 pm on Jul 10, 2006 (gmt 0)

I presume you would concede that when Google operates in the UK, it does so under UK law.

Sure, but KinderStart hasn't sued in the UK, or in Thailand, or in Argentina, or in China, and this thread is about a U.S. lawsuit.

The right to free speech, in all western countries is intended to protect individuals, it is not intended to protect large companies at the expense of small companies (or individuals). Eventually, legislators will catch up with search technology and, once in a while, constitutions are ammended.

I haven't noticed any demand at the grassroots for government regulation of search-engine results, so you'll need a well-paid lobbying organization to get things going. How about the Guild of Unsuccessful SEOs, or the Poorly-Ranked Web Sites Association?

nippi




msg:3002008
 1:57 am on Jul 11, 2006 (gmt 0)

No idea why this has degenerated into a legal argument.

This 155 message thread spans 6 pages: < < 155 ( 1 2 3 [4] 5 6 > >
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