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.
Kinderstart also asserts a claim for monopolization under Section 2 of
the Sherman Act, 15 U.S.C. =A7 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 =93Blockage=94 of
Kinderstart=92s website, Google has violated Section 2 under the =93refusal
to deal=94 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=97not even allowing it to buy tickets at listed retail
prices. Id. However, as the Supreme Court has noted, =93Aspen is at or
near the outer boundary of =A7 2 liability.=94 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 =B6 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=92s monopolization claims under the Sherman Act
will be dismissed with leave to amend. In light of this disposition,
the Court need not reach Google=92s argument that Kinderstart=92s 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. =A7=A7 201, et seq. A common
carrier =93makes 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.=94 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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