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Thursday, June 21, 2012



Terrific analysis, Paul, as always. The only quibble I'd have is buying into the interpretations that Google has put around the few district court cases that Google tends to cite. If you read them, you'll be surprised.

In Langdon v. Google, a Delaware trial court case from 2007, a pro se plaintiff filed suit against all search engines, claiming that they violated *his* constitutional rights. The court found that Google isn't a state actor -- hardly surprising, and hardly a ringing endorsement of Google's First Amendment rights.

In Kinderstart v. Google, another 2007 Delaware trial court decision, a vertical search engine claimed that Google monopolized the market for search and penalized it because it was a competitor. The court granted Google’s motion to dismiss because Kinderstart couldn’t plead specific facts to support its case, not because Google had an absolute First Amendment right to engage in those behaviors. Again, the court didn’t even address Google’s First Amendment claim.

The 2003 Oklahoma trial court decision in Search King v. Google did address the issue. That court accepted Google’s argument that its “objective” algorithm, as it was applied ten years ago, constituted protected opinion because it did not include provably false factual connotations. That’s not an “absolute” protection of speech, but quite consistent with the general commercial speech test -- and I suspect Google’s algorithm might have changed a bit over the years. (Back in 2002, the leading search search engine was Alta Vista -- remember them?).

More in my paper here:


Interesting. Privacy versus Piracy.

Bruce Boyden

Small correction: Wu mentions Volokh in the fifth paragraph of his op-ed. He's definitely responding to the Volokh/Falk paper.

David Morris

I'm unclear on your thinking Paul. If it is free speech then it doesn't matter what the regulators come up with, does it? Google would have the right to favor its own or discriminate against others because it is free speech. That I think is the essence of what Wu is saying.

David Morris

Seth Finkelstein

I suspect what Tim Wu is doing is trying to reframe the antitrust issue in a politically acceptable manner. If you examine the words literally, the meaning may not make sense in terms of the nuances of the topic. But that's not the point. The idea is to put the issue in a way that can be a rallying cry. Like "Net Neutrality" (neutral to what? does that mean quality-of-service is illegitimate? must voice-over-IP be treated like file transfers, in some bizarre technical dictate from ideology?).

Don't get me wrong, you're correct that it's really an antitrust issue. But in today's business-ideology world, you're almost not allowed to argue something as an antitrust issue. Pundits and PR flacks will call you a liberal, and that will be the end of being taken seriously in terms of being listened to by anyone in power.

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