Roger writing the LAWmag

The Law Chases Google Inc.

Large, healthy corporations rarely allow events that can affect their bottom line to happen randomly. Microsoft - Google - Exon - Apple - all have a well-paid staff of analysts to track, anticipate and respond to outside forces which might compromise dividends, future growth and the business plan.

At the end of the day, as far as the business plan and dividends go, Google, like any other soul-less corporation, uses Google to help Google.

It's a well-oiled, well-run machine, all parts feeding into the whole. When Big Brother isn't or can't watch, that includes feeding on littler creature in the jungle [such as this website - see below - this article comes with an advisory re conflict of interest].

Google falls under anti-trust law because Google is so dominant. June 2012 figures reported by Experian Marketing Services shows that Google has a whopping 65% share of Internet search. In Europe, Google's internet search market share is 90%.1 In mobile search, the Google USA market share is 94%.

That's a statutory monopoly.

To attract anti-trust liability, a company must have a monopoly, defined in antitrust and competition law as (1) a large degree of, or a dominant market position, and (2) has engaged in anti-competitive (usually exclusionary) conduct.

scowling Google logoIn modern democracies, because corporations have no soul, with monopoly comes legal obligation.

As it scurries away from the first anti-trust sheriffs that have appeared over the horizon, Google Inc. of Mountain View, California seems engaged in an extraordinary game of antagonizing the several government agencies which are now chasing it down for alleged privacy and antitrust and competition law issues: delay, delay, delay with a liberal dose of obfuscation in the form of press release googledigook.

If appearances mean anything, an observant litigation lawyer would suspect just such a strategy of delay and obfuscate. Rather than promptly comply with information demands of the law and its agencies and promote an image of Don't Be Evil - walk the talk - Google seems quite willing to wink, to wiggle, to plan and avoid, the proverbial kid in full denial with his hand in the cookie jar.

And the world is watching. A favourite caricature of Google on the Internet is an image of Doctor Evil of the Austin Powers movies, with his little finger to his bottom lip.

But defiance and obfuscation did not work for Jesse James and ultimately, it will not work for Google Inc. Yet, strangely enough, this mega-corporation seems intent on this strategy which exacerbates, frustrates and multiplies the bees and wasps of law enforcement until by the force of sheer numbers, they will bring this elephant down.

Just ask Microsoft who in the past decade ferociously fought the Justice Department of United States of America on antitrust issues.

Billion dollar fines weren't the only legacy for Microsoft. The sheer publicity of a defiant attitude towards government law investgtaions and judicial proceedings eroded public trust and goodwill, encouraging millions of computer users to look elsewhere for solutions.

Like a giant ostrich with its head in the sand, Google Inc. seems to have adopted the very same playbook.

The Accused

Google Inc.'s main service is Internet search which it promotes as truly objective. And yet, there is evidence that Google manually interferes with its search algorithms to boost or blacklist the rankings of websites based on internal, secret business decisions, and without notice to the target.

Wikipedia is a popular Internet website, a leader in the Intertnet reference information category with an interesting, populist model. Wikipedia pages always rank at the top on Google searches even though the anonymous content of Wikipedia is so unreliable that it includes this disclaimer:

"Nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information. All information read here is without any implied warranty of fitness for any purpose or use whatsoever."


The reason for the elevated ranking of Wikipedia must therefore rest elsewhere.

It can't be quality of information.

Amazon search results also do very well on Google even though the actual information provided on any particular book is usually sparse. Perhaps related to the apparent preferential search ranking is the fact that for every book sold from a referral from Google, the latter may be entitled to a commission?

Increasingly, search reports bring back results from Google Books, a source that is growing as Google scanners work around the clock. As users go to Google Book results, the page is lit up with Google advertising. And that book may well be available through .... Well, look at that! Google Play Book Store?!

Contrast that against this snippet from the Google public position:

"Placement in search results is never sold to anyone."

Anyone except Google itelf?

Through a variety of products such as Google Scholar and Google Books, Google Inc. has clearly entered the online reference information marketplace. By priority ranking of search results from Wikipedia, a self-professed unreliable service provider, and no long-term market threat to Google Books, Google Inc. discreetly weakens other, more credible information providers.

This can't be an acident. Google is too large and too successful for this to be uninended collateral damage.

The contents of this website is a virtual Petri dish of the Google syndrome. Duhaime.org is written entirely by attorneys who have given of their time on a pro bono basis to create original, information-rich content. The sites has been recognized with hunfdreds of back-links from government and educational websites around the world.

All duhaime.org contents now competes with Google content with the advent and growth of Google Books (including Google Play) and Google Scholar, as well as content provided by other web-sites that appear to now have preferential treatment by Google: Wikipedia, Hein Online and Jstor, to mention but a few.

Since April 2011, the search rankings of Duhaime.org have dropped considerably and no attempt to engage Google in communication has succeeded. Nor has $25,000 spent on search engine optimization (SEO) consultants revealed any content or architectural cause for the sudden and unannounced drop in Google search.

Picking just one 7,000 legal information articles at Duhaime.org, go to Google.com and enter the search term "abuse of dominant position" and a litany of irrelevant and unequal documents will be presented, but not http://www.duhaime.org/LegalDictionary/A/AbuseofDominantPosition.aspx. The entire website is virtually invisible on Google search: international law, William Blackstone, Edward Coke, Jogging Safety, etc. All one-of-a-kind, valuable reference material, professionally researched and written, all properly formatted to be search-friendly, yet all buried deep underground by Google search.

It is not alone. 1plusV, which runs the Ejustice.fr legal website and search engine, has filed a complaint with the European Commission Competition Directorate. It has also filed suit in court for economic tort, a claim which has the making of a class action, and which seeks damages of some $400-million.

The harm done, as outlined in the November 2010 complaints filed with the competition directorate of the European Union by Foundem, Ciao and 1plusV, continues while Google delays:

"The proceedings ... concern the unfavourable treatment by Google Inc. of competing vertical search service providers in Google's unpaid and sponsored search results coupled with an alleged preferential placement of Google's own services."

Search = Money = Brown-Nosers

Say it often enough and they will believe it: Google wants to be known as the hip, honest company with the Don't Be Evil creed.

The Internet search monopoly position held by Google Inc. is so substantial that an entire cottage industry has erupted called search engine optimization or SEO, all trying to break through the Google code from the outside and, with the enthusiasm typical of mass hysteria pushed along by money, almost all rushing to prostrate themselves at the altar of Google Inc. The Google playbook is routinely parrotted by the SEO community, especially the opening move:

"If I had a dime for every website that says it's the best...."

The sheer size and sudden growth of the SEO community suggests that the Google code has not been effective in sorting out the wheat from the shaft on the Internet as the SEO market is nothing if not the outside manipulation of search rankings. As the SEO army undermines the Google algorithm for the financial advantage of their clients, content be damned, the Google algorithms multiply and mutate, exacerbating any later attempt to forensically discover Google's internal boosts and black-listings, mostly denied by Google in spite of evidence to the contrary.

Google search logo with Devil in background + "?"This same SEO community is the first to run to the podium to defend Google, each seeking that special bond with some Google staff member with access to the secret button which can boost the search standing of a particular website, or blacklist a competitor. These SEO soldiers maintain a significant artillery of blogs quick to parrot whatever spin Google suggests on their search algorithm, all on the same theme of objectivity and good intentions.

In an American case now being tried in San Francisco, Oracle has suggested that Google Inc. dishes out undisclosed favours to secret collaborators who parade as objective commentarors on the Internet and extol Google Inc. According to U.S. District Judge William Alsup:

"Google suggests that it has paid so many commentators that it will be impossible to list them all."

In the result, there may be little if any body of independent professional expertise on the Internet either capable or willing to declare that the Emperor has no clothes although little chinks are now finally appearing in the armor as the traditional long delays of competition and anti-trust investigations which target Google search, commence their end games.

Taking into account the financial advantage of high-ranking in Google search, the corporation is also shielded from complaints from its victims by sheer economics and human nature - none of which can be lost on the Google brain-trust. Most reference information websites that have been specifically or generally targeted by Google.com for prejudicial ranking would be timid of any formal complaint to law enforcement officers because of the prospect of discrete retaliation by Google Inc.

For many of these websites, a blacklisting by Google Inc. is a virtual death penalty.

Here is where delay plays out. Few companies unfairly but discreetly ripped apart by Google's search algorithm will survive the time Google typically takes to respond to law enforcement requests. The line-of-credit will run out. The same issue of delay between complaint and judicial determination haunts the legitimate actions of antitrust or competition law enforcement officers. By the time a court can be put in a position to speak, the corporate complainant is deceased. Who knows how many victims lay in Google's path.

The Iceberg

What is discreetly being imposed on this reference website, duhaime.org, appears to be just the tip of the iceberg as other victims come forward.

in April, the Federal Communications Commission fined Google $25,000. Google showed up with the cheque to pay the fine riding a white horse when it stated:

"We have shared hundreds of thousands of documents with the (insert name of law enforcement agencies here) and we are happy to answer any questions that regulators have about our business."

Writing on the subject of the FCC invstigation, Rory O'Connor of Wired Magazine wrote:

"At every step of the way, (Google Inc.) has delayed, denied and obstructed investigations into its data collection. It has consistently resisted providing information to both European and American regulators and made them wait months for it...."

Another favourite template at the Google Inc. press office:

"We continue to work cooperatively with the (insert name of law enforcement agency here)."

In June of 2012, the Attorney General of Texas took the extraordinary step of going public with its investigation into the alleged manipulation by Google of search rankings for the purposes of enhancing the search rankings of Google-friendly websites, while adversely affecting the ranking of websites which compete with Google products. According to observors, Google was refusing to disclose internal information which the government believed would give evidence of the true, financially-driven motivation behind the search algorithms.

The competition directorate of the European Union is presently investigating a growing number of complaints related to search manipulation: Google giving its own services preference in search results. So dilatory was Google Inc. in providing the EU with documentation that the director of the Bureau, JoaquĆ­n Almunia, took the unprecedented step of commenting publicly on Google's obstruction of justice.

Already, the 2012 annual report Google sent to shareholders lists no less than 15 extant search-related anti-trust investigations:

  • Attorneys-general of Ohio, Texas and Mississipi;
  • U.S. Federal Trade Commission (Bureau of Competition and Bureau of Consumer Affairs);
  • iplusV (eJustice);
  • Foundem;
  • vVfT
  • Ciao;
  • Elfvoetbal;
  • nnpt.il;
  • Hotmaps;
  • Spanish Association of Daily Newspapers;
  • dealdujour.pro; and
  • Microsoft.

And this headline circa August 13, 2112:

India Launches Antitrust Investigation Against Google

The data manipulation by Google's search division to serve the business plan interests of Google Inc. is bound to fail as it is incrementally exposed by dedicated and determined antitrust and competition law officers around the world. At the end of the day, the initial misuse of a monopoly position will most make millionaires of the monopolists, but ultimately, the law will catch up and saddle this unruly horse.

Google Inc.'s litigation strategy of delay is not limited to antitrust complaints. In that trial it presently has against Oracle over copyright issues, Google did not meet a deadline set by the federal judge for disclosure.

Comeuppance

Sooner rather than later, Wall Street will react to the adverse attention wrought upon Google Inc. by various government agencies around the world. Google Inc. may be able to ignore the legitimate cries of injustice raised by puny little individual websites that it seeks to suppress, especially if those desperate please are ignored by competition bureaus who are intimidated by the mammoth corporayion Google Inc., but Google cannot ignore the collective complaint of its shareholders.

Although the investigations or cases are still pending before quasi-judicial agencies, the sheer number suggests that Google either does not understand its responsibilities under anti-trust statutes, or intentionally double-speaks on search objectivity. The delay tactics do not auger well for Google and remind one that actions speak louder than words.

Don't Be Evil may be more like a comical wink-wink, nudge-nudge internal joke at Google rather than a moniker for corporate dealings.

REFERENCES:

♦ Duhaime.org wishes to thank and recognize Vancouver competition lawyer Steve Szentesi for providing most of the press and media leads for this story.

Posted in Internet & Intellectual Property
on
by

Attached Images

  • The Law Chases Google Inc.