The right to life, liberty, and a favorable ranking

Google uses its algorithms to set the Page Rank of websites. Anyone with a google toolbar can immediately see that Concurring Opinions has a pagerank of 5. Pageranks are determined based on Google’s algorithms, which are supposed to related to a site’s popularity (and to some degree, to longevity, as links build up). The system seems to work pretty well. Volokh.com has a pagerank of 7; the brand-new Orinkerr.com has a pagerank of 0 at present, but will doubtless climb the pagerank . . er, ranks . . . as it develops a track record of links.

Pageranks are more than just bragging rights, however. They affect how one’s site is listed in search results; this means dollars. And so we see this lawsuit:

A parental advice Internet site has sued Google Inc., charging it unfairly deprived the company of customers by downgrading its search-result ranking without reason or warning. . . .

KinderStart charges that Google without warning in March 2005 penalized the site in its search rankings, sparking a “cataclysmic” 70 percent fall in its audience — and a resulting 80 percent decline in revenue.

It seems problematic to suggest any right to a particular rank from a third-party ranking service. After all, there’s no contractual relationship here. And torts, like interference with business relationships, seem like a real stretch. Google isn’t a common carrier or anything else; Google is a third party, which happens to rank websites.

This isn’t such an unusual activity; entities create rankings all the time. If we chose to do so, we could rank something here at Co-Op — law blogs, perhaps — and I don’t think that we would have a responsibility to any of the entities we ranked. If our (hypothetical and non-existent) rankings listed Volokh.com at #1 and Conglomerate at #10, I don’t think that Gordon Smith could sue us — even if those rankings drove more traffic from Co-Op to Volokh than they did from Co-Op to Conglomerate. After all, we have no contract with any of them. (Similarly, if U.S. News lowers the rank of my law school, I don’t think that I’ve got an action against them.)

But I’d love to hear otherwise. And I’m ready to adapt with the times, if needed. I fact, I’ve got a complaint against Eugene Volokh all ready to go — you see, I don’t think he’s been listing Co-Op high enough up on his blogroll . . .

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2 Responses

  1. John Armstrong says:

    It seems obvious to me on a legal level that you’re correct. Also, on a functional level, the whole purpose of pagerank is to provide some metric as to the relevance of a given site to a given query — and to base that metric essentially on peer recommendations. This was what made Google what it was in the first place, back in the days of searchable indices like Yahoo or HotBot.

    What the plaintiff wants here is to usurp the peer-recommendation system. They want Google to send searchers to their site rather than what the algorithms judge to be the most relevant site. In essence, they want Google to give searchers (Google’s real clientele) what Google’s well-honed methods consider bad advice.

    The best analogy would be if I went to a broker who was being strong-armed by a corporation to advise me to buy its stock rather than that of a more profitable competitor, which seems to me to be an ethics violation on the part of the broker. KinderStart’s proper path is clear: offer more relevant (as judged by other websites) content than its competitors.

  2. Eric Goldman says:

    In my mind, you are clearly correct, for reasons I explain at http://blog.ericgoldman.org/archives/2006/03/google_sued_ove.htm . I have also posted a copy of the complaint there. Eric.