I am a litigation attorney in private practice. I have to represent my clients using all legal and ethical means at my disposal consistent with my view that litigation should be a last, not first, resort to problem resolution since it is costly, aggravating, and not always the best way to resolve business disputes. Sometimes it is. A company has to make the determination that the costs associated with litigation are worth the potential rewards. It is a fundamental cost-benefit analysis in that regard. There are rare instances when there is a good guy and there is a bad guy and litigation is the only way to resolve a problem. Usually, the calculus is more complex. The lawyer(s) that drafted this complaint (which I have not seen, despite an attempt to locate it at PACER) has (have) a difficult legal theory to try to advance. I do not know what attempts at pre-litigation resolution were attempted in this case. I can imagine, however, that the attorneys for Google probably told Kinderstart's counsel to sue another deep pocket to make up for its alleged losses. Indeed, I don't think that any of Kinderstart's allegations of Google's abridgement of constitutional rights will hold water, simply on the basis that Google is not a public entity (e.g., the Police) and is not a quasi-public enterprise (e.g., utilities, which are heavily regulated at the local, state and federal levels). It therefore does not stand in the shoes of a governmental agency that is trying to curtail freedom of speech under the First Amendment to the US Constitution. What the lawyer is going to have to argue, and this is the only argument that is coherent in a constitutional sense, is that Google has become a quasi-public institution and is therefore bound by the restrictions and must offer the freedoms contained in the US and California Constitutions. To borrow an ancient Latin phrase, this dog won't hunt. Google is not quasi-public. It is in business to make money for its shareholders. Just ask the SEC and look at its corporate filings in EDGAR.
The quality and quantity of Kinderstart's content (as so many others have seen fit to comment upon) is utterly irrelevant. The only relevant issue for resolving the Constitutional issue is the status of Google as a governmental or quasi-governmental entity. I saw a quote from one of the Plaintiff's lawyers who recognized this. He also undoubtedly understands that this will be an uphill fight in the District Court in San Jose.
Kinderstart is seeking to fundamentally alter the basis of the use of the Internet and specifically search engines that use proprietary formulae in "ranking" (really, who appears first, based on the accepted truism that people are going to 'click' to the first relevant website they come across, to be more precise) that would then be subject to some level of constitutional scrutiny by the Courts. I cannot see any judge agreeing with this position. There are, after all other search engines that presumably would not like to see themselves stuck with Constitutional guarantees to the public. Imagine if you will what utter and further chaos the Internet (and specifically search engines such as Google, MSN, Yahoo!, AOL (owned in part by Google) and all the others) would be thrown into if they were all of a sudden responsible to the public at large if, using their calculus for rankings (pick any company's methodology) they could be held liable in damages for a fall in the rankings of ANY company they list and which is dependent upon high rankings on a particular search engine -- here, Google -- for its income. The Court would have to find some Constitutional civil right that would attach to ALL companies that Google (and other search engines presumably) ranks using its ranking formulae. The Courts would become involved in determining whether a particular company's search engine calculus is Constitutional. I think that ultimately this is what a court would have to find and do if the KinderStart.com suit is successful.
My crystal ball tells me that this case will not live past a summary judgment m
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Exactly. The other guy isn't dead. Therefore, there was no murder. Solar power won't murder the ozone layer.
I am a litigation attorney in private practice. I have to represent my clients using all legal and ethical means at my disposal consistent with my view that litigation should be a last, not first, resort to problem resolution since it is costly, aggravating, and not always the best way to resolve business disputes. Sometimes it is. A company has to make the determination that the costs associated with litigation are worth the potential rewards. It is a fundamental cost-benefit analysis in that regard. There are rare instances when there is a good guy and there is a bad guy and litigation is the only way to resolve a problem. Usually, the calculus is more complex. The lawyer(s) that drafted this complaint (which I have not seen, despite an attempt to locate it at PACER) has (have) a difficult legal theory to try to advance. I do not know what attempts at pre-litigation resolution were attempted in this case. I can imagine, however, that the attorneys for Google probably told Kinderstart's counsel to sue another deep pocket to make up for its alleged losses. Indeed, I don't think that any of Kinderstart's allegations of Google's abridgement of constitutional rights will hold water, simply on the basis that Google is not a public entity (e.g., the Police) and is not a quasi-public enterprise (e.g., utilities, which are heavily regulated at the local, state and federal levels). It therefore does not stand in the shoes of a governmental agency that is trying to curtail freedom of speech under the First Amendment to the US Constitution. What the lawyer is going to have to argue, and this is the only argument that is coherent in a constitutional sense, is that Google has become a quasi-public institution and is therefore bound by the restrictions and must offer the freedoms contained in the US and California Constitutions. To borrow an ancient Latin phrase, this dog won't hunt. Google is not quasi-public. It is in business to make money for its shareholders. Just ask the SEC and look at its corporate filings in EDGAR. The quality and quantity of Kinderstart's content (as so many others have seen fit to comment upon) is utterly irrelevant. The only relevant issue for resolving the Constitutional issue is the status of Google as a governmental or quasi-governmental entity. I saw a quote from one of the Plaintiff's lawyers who recognized this. He also undoubtedly understands that this will be an uphill fight in the District Court in San Jose. Kinderstart is seeking to fundamentally alter the basis of the use of the Internet and specifically search engines that use proprietary formulae in "ranking" (really, who appears first, based on the accepted truism that people are going to 'click' to the first relevant website they come across, to be more precise) that would then be subject to some level of constitutional scrutiny by the Courts. I cannot see any judge agreeing with this position. There are, after all other search engines that presumably would not like to see themselves stuck with Constitutional guarantees to the public. Imagine if you will what utter and further chaos the Internet (and specifically search engines such as Google, MSN, Yahoo!, AOL (owned in part by Google) and all the others) would be thrown into if they were all of a sudden responsible to the public at large if, using their calculus for rankings (pick any company's methodology) they could be held liable in damages for a fall in the rankings of ANY company they list and which is dependent upon high rankings on a particular search engine -- here, Google -- for its income. The Court would have to find some Constitutional civil right that would attach to ALL companies that Google (and other search engines presumably) ranks using its ranking formulae. The Courts would become involved in determining whether a particular company's search engine calculus is Constitutional. I think that ultimately this is what a court would have to find and do if the KinderStart.com suit is successful. My crystal ball tells me that this case will not live past a summary judgment m