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A federal judge in Oklahoma recently dismissed a case that alleged that Google purposefully and maliciously decreased the PageRanks on Google’s Internet search engine previously assigned to specific Web sites related to a company called SearchKing. Had Google lost this case, it is possible that the floodgates would have opened for many parties to question how Google and other search engines rank search results. ISSUES PRESENTED The case, SearchKing, Inc. v. Google Technology, Inc., venued in federal court in Oklahoma, according to presiding judge Vicki Miles-LaGrange, “involves the interrelationship between Internet search engines and Internet advertising, and their collective connection to the First Amendment.” The specific issues presented were “whether a representation of the relative significance of a web site as it corresponds to a search query is a form of protected speech, and if so, whether the ‘speaker’ is therefore insulated from tort liability arising out of the intentional manipulation of such representation” under the law. GOOGLE’S SEARCH ENGINE Practically everyone knows that Google operates an Internet search engine. This search engine is controlled by a mathematical algorithm, one component of which produces a “PageRank” �- a numerical representation of the relative significance of a specific Web site as it relates to a particular search request. The PageRank emanates from a combination of factors, including text-matching and the number of links from other Web sites that are directed to the PageRanked Web site. The closer a Web site matches a search query, the higher the page rank. Google does not sell PageRanks. Moreover, ranked Web sites cannot determine how they are ranked, or even if they show up on Google’s search engine in the first place. PageRanks do have value, even if they cannot be purchased, as highly ranked Web sites can and do charge premium amounts for advertising space. SEARCHKING PR Ad Network (PRAN) was introduced by SearchKing in August 2002. PRAN acts as a “middleman,” charging a fee to its clients for finding highly ranked Web sites that are interested in advertising on their sites and for paying those sites a portion of its fees. The PRAN fees are to some extent based on the particular PageRank assigned to a Web site on which PRAN’s client’s advertisement will appear. THE DISPUTE SearchKing launched this lawsuit because of PageRank reduction. From early 2001 to mid-2002, SearchKing’s PageRank was 7, and then in July 2002 it increased to 8. PRAN’s PageRank was 2 prior to its decrease. In August or September 2002, the PageRank for SearchKing fell to 4. At the same time, PRAN’s PageRank was completely eliminated. SearchKing alleges that the PageRank drop has adversely impacted its business opportunities by limiting exposure on the Google search engine. SearchKing therefore filed this case, alleging tortious interference with contractual relations, while seeking injunctive relief, compensatory and punitive damages from Google. SearchKing claims that the PageRank drop happened because Google was concerned that PRAN was competing with Google by selling advertising space on Web sites ranked highly by Google’s PageRank system. Google responded to the complaint by arguing that it is immune from tort liability because PageRank is protected speech. THE LEGAL CLAIM AND THE DEFENSE As mentioned, SearchKing asserted a single claim for tortious interference with contractual relations. To succeed on such a claim under Oklahoma law, SearchKing was required to prove that Google interfered with a business or contractual relation, the interference was malicious and wrongful, the interference was not excusable, and that SearchKing suffered injury as a result. The judge and the parties agreed that the key issue to be decided was whether the alleged interference was malicious and wrongful and whether it was excusable. Google defended the claim by arguing that its actions could not be deemed wrongful because PageRanks are opinions protected by the First Amendment. SearchKing countered that PageRanks are objectively verifiable, and thus are not the stuff of opinions. THE COURT’S RULING Google filed a motion to dismiss the case based on its position that PageRanks are protected opinions. While the judge agreed that “the process, which involves the application of the PageRank algorithm is objective in nature,” she nevertheless found that “the result, which is the PageRank … is fundamentally subjective in nature.” She explained that “this is so because every algorithm employed by every search engine is different, and will produce a different representation of the relative significance of a particular web site depending on the various factors, and the weight of the factors, used to determine whether a web site corresponds to a search query.” The death knell of SearchKing’s case was the judge’s finding that “there is no conceivable way to prove that the relative significance assigned to a given web site is false,” and thus, “Google’s PageRanks are entitled to ‘full constitutional protection.’” Because the PageRanks are protected speech, such speech “cannot constitute improper interference in the context of a claim for tortuous interference with contractual relations.” Indeed, this would be the case “even if the speech is motivated by hatred or ill will.” Accordingly, Google’s motion to dismiss the case was granted. POSTSCRIPT SearchKing has proclaimed publicly on the Internet that the dismissal was not a loss, but instead “we see it as a victory.” Such victory supposedly included “some very powerful precedences [sic] for the next step in demanding accountability from a large tech company in the way they [sic] deal with global commerce.” Hardly �- the only victor in this case was Google, whose PageRank system was vindicated. And had Google not won, search engines as we know them might cease to exist, as they would have to rank sites as directed by other parties and courts. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected] .

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