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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google - Updated 3Xs
Sunday, September 05 2010 @ 12:58 PM EDT

I guess you heard that the Texas attorney general has opened an investigation into antitrust complaints against Google, complaints lodged by Foundem, SourceTool, and Them again? Their complaints are not new. Here's Google's blog post about it.

And likely you heard about that utterly tasteless ad in Times Square from Consumer Watchdog, a cartoon of a creepy looking Eric Schmidt handing ice cream to children and asking for their secrets.

I think I can explain both events, because they are part of one campaign. Or as American Lawyer describes [PDF] the lawyers behind this, they are on a crusade against Google. The article is titled "The Google-Slayers". Guess who the lawyers on this crusade have as a client? Microsoft. They handle Microsoft's antitrust work. Guess who sent the first complainant to these lawyers, which led to this crusade? Microsoft. The jumping off point.

So. A crusade to destroy Google. By folks who count Microsoft as an important client, with new clients, at least one of them directly referred to the "crusaders" by Microsoft and the rest now under their umbrella. My stars, gentlemen. Where is your subtlety?

But there's more.

The Cast:

Here are the three whose complaints the Texas AG is investigating, as Google highlights each one:

  • Foundem -- the British price comparison site that is backed by ICOMP, an organization funded largely by Microsoft. They claim that Google’s algorithms demote their site because they are a direct competitor to our search engine. The reality is that we don’t discriminate against competitors. Indeed, companies like Amazon, and Expedia typically rank very high in our results because of the quality of the service they offer users. Various experts have taken a closer look at the quality of Foundem’s website, and New York Law School professor James Grimmelmann concluded, “I want Google to be able to rank them poorly.”

  • SourceTool/TradeComet - SourceTool is a website run by parent company TradeComet, whose private antitrust lawsuit against Google was dismissed by a federal judge earlier this year. The media have noted that TradeComet is represented by longtime Microsoft antitrust attorneys, and independent search experts have called SourceTool a “click arbitrage” site with little original content.

  • myTriggers - Another site represented by Microsoft’s antitrust attorneys, myTriggers alleges that they suffered a drop in traffic because Google reduced their ad quality ratings. But recent filings have revealed that the company’s own servers overheated, explaining their reduced traffic.
Are the complaints legitimate or trumped up? Aside from the courts ruling against one of these complainants already, I have some further details for you that strongly reinforce Google's words, at a minimum. Let's start with that article in American Lawyer, which Cadwalader put up on its site, titled The Google-Slayers. Shades of early media coverage of SCO. Do you remember Darl portrayed as the Linux Killer? We were to learn that you can't kill off a competitor with bogus claims. You can cost them a lot of money, however, and you can cast a pall of suspicion over them and that certainly can cost them business, business that goes to others. Ever track Microsoft's server sales after SCO sued IBM? Coincidence? One might so argue. But what do you think?

So, here we go again, eh? Microsoft is now trying to push Bing down our throats, and suddenly its main competition finds itself embroiled in coordinated legal messes that make little legal sense to us, the public, just as IBM had to deal with SCO's over-the-top legal allegations. It still is, actually, dealing with SCO seven years later and counting.

In the article in American Lawyer, attorney Rick Rule of Cadwalader is described as being on a crusade against Google. And what else do we learn? That in fact it was indeed Microsoft who referred TradeComet, which owns SourceTools, to Cadwalader. And myTriggers contacted TradeComet, or so they tell it, and it referred myTriggers to Cadwalader too. Guess who else is involved? The lawyer who represented Microsoft in its acquisition of Yahoo, after Google was driven out by complaints to the FTC by at least one of these same complainants, as I'll show you in a minute:

Besides Rule, the team includes [Jonathan] Kanter, a former Federal Trade Commission attorney who represented Microsoft in its acquisition of Yahoo! Inc.’s search business, and special counsel Joseph Bial, who holds a Ph.D. in economics and has studied the work of Hal Varian, who is now Google’s chief economist.
But let's go one step deeper, shall we? In April, Consumer Watchdog sent a letter to the US Justice Department which it read at a press conference, asking that it launch an investigation into Google for antitrust violations, and prior to it even launching, it asked for various remedies against Google, including that it be broken up. Consumer Watchdog is the group that placed that over-the-top ad in Times Square, causing even PC World to ask if the group was losing its credibility. You think? Guess who was there in attendance at the April media event?
Consumer Watchdog released its letter to the Justice Department today at a news conference “The Antitrust Case Against Google” at the National Press Club in Washington, DC. In addition to Simpson, participants were Joseph Bial, special counsel at Cadwalader, Wickersham & Taft, who represents and; Simon Buckingham, a New York based Internet and mobile entrepreneur; and Gary Reback, an attorney with Carr & Ferrell and a founder of the Open Book Alliance. They spoke offering their personal views and analysis.
The same little gang. Mr. Bial again, who has been studying one of Google's employee's economic views closely, is working for Cadwalader as special counsel. He was there. Who is paying for all this study, one wonders, not to mention attendance at media events? But look who else was there: Gary Reback of Carr & Ferrell.

Does that law firm name not ring a bell? It certainly should, as it has long been rumored to have been the law firm SCO used for the mock trial it set up prior to suing IBM. And Carr & Ferrell originally represented Psystar against Apple. Do you remember that when Apple sued it, Psystar reacted with an answer with antitrust counterclaims? Yes, another antitrust allegation against another Microsoft competitor. And lo and behold, Carr & Ferrell is part of this new crusade against Google, another Microsoft competitor. The firm bowed out of the case when their antitrust counterclaim bit the dust, interestingly enough, and the firm was replaced by Camara & Sibley.

Say. IBM has been accused of antitrust violations too, regarding that TurboHercules thing.

Small world, isn't it? These days, if you are a Microsoft competitor, it seems there is no avoiding antitrust complaints being lodged against you, even when you are absolutely not guilty or, in Apple's case, not even a monopoly, as the court ultimately ruled it was not. Is this perhaps more abuse of the legal and administrative systems for anticompetitive purposes? If so, could somebody investigate *that*?

Gary Reback used to work for Wilson, Sonsini, as you can see from this exhibit [PDF] from the Novell v. Microsoft antitrust litigation. He was, while with Wilson & Sonsini, called the biggest thorn in Microsoft's side, back in the day during Microsoft's own antitrust troubles in the US. Of course, so was David Boies, and look at him now. Reback then:

In his assaults on Microsoft, Reback has pushed the theory that in the software business "he who has, gets" -- that whoever finds a market first may be able to dominate it, despite having what ultimately may turn out to be an arguably inferior product. If this theory is right, "it calls into question the idea that the free market can select for us the best goods," Reback argues. In that case, "there has to be a role of government to make sure that companies with superior technology" get a fair chance to compete.
And now, he supports the breaking up of Google, so "competitors" with superior products have a fair chance to compete just in case Google might be anticompetitive? Replace Google? Like who? TradeComet, SourceTool, and myTriggers hardly pretend to the crown of supplanting Google. If fact, they are barnacles attached to Google's ship, totally dependent, to hear them tell it, on Google's algorithm to send business their way at a price they can afford. So what is this really all about? Can it be about what they say it's about, when it makes no sense?

Reback wrote an editorial about Google Books published by TechCrunch in February, and the tie-in for Reback is Google Books. It turns out that was "preventive" in nature as well. And here is his book, Free the Market, which argues actually for the opposite, that government regulation of the market with antitrust law is necessary so it doesn't overdose on Ayn Rand, so to speak. And of course, us little people can't possibly know on our own what search engine we like to use. Dude. Let me explain something to you. In search, there is no lock in. All I have to do is find a better search engine, and I'm totally there. I can't, so far, find one. Microsoft has said that it's really hard to compete with Google, because they got a head start, so their algorithms are based on real life experience with millions of users. Might this all be about discovery, to find out how those unreachable algorithms work, with the very enjoyable effect, to Microsoft, of taking away from Google the very thing that makes Google so great at what it does? Let's think about that.

Reback has been an antitrust Big Gun, and a worthy one. But he's in bed with some strange bedfellows now. Here we find him in May of this year taking the Foundem folks around Washington, DC and introducing them to all the big wigs he knows that might be helpful:

This month, Mr. Reback shepherded Adam and Shivaun Raff, the husband-and-wife entrepreneurs behind the London comparison shopping site Foundem, around Washington. The three held meetings with Congressional staff members and antitrust enforcers at the Department of Justice and the Federal Trade Commission.

Their goal was to air the Foundem couple’s complaint that in 2006, Google’s supposedly objective algorithms suddenly dropped Foundem into the netherworld of Google search results. They say Google also raised the rates Foundem had to pay to advertise alongside search results. These moves, the couple say, pushed their comparison shopping site out of view, and Google later put the spotlight on its own shopping listings.

Google is the “arbiter of every single thing on the Web, and it favors its properties over everyone else’s,” said Mr. Reback, sitting in a Washington cafe with the couple. “What it wants to do is control Internet traffic. Anything that undermines its ability to do that is threatening.”

A little hyperbole. No doubt that yearning to control everything on the Internet explains why anyone can use the Android operating system any way they wish. See how stupid his argument is? If Google really wished to control Internet traffic, wouldn't it instead create closed devices, like Apple does? Just because Microsoft acted the way it did when it was dominating, it doesn't follow that everyone else who is successful will do the same. And how in the world could Google be any more open to the world than it is with Android? I'd answer by saying if they used the GPL instead, but that is me. Because they didn't, actually, literally anyone can use the operating system as they please, including Microsoft and other proprietary folks if they want to.

Did you see that Bing has a free app for Verizon's Android phones now? The LA Times tries to spin it as Android showing "its proprietary side", which it does in a way, but I'd view it more as showing that Google's not an anticompetitive monopoly, since Android lets partners do pretty much whatever they want, and anyone, even kids, can write an app with Android's tools. How less controlling can it be? Verizon wanted to do an exclusive deal with Microsoft and put Bing on its phones. They think it's a selling point. So they can. Can you imagine Microsoft doing that, though, allowing Google as the exclusive search engine on Windows phones? In fact, instead they've recently announced that Bing will be the only default search engine on Windows Phone 7. Apparently it's hardwired in:

Greg Sullivan, a senior product manager at the company, explained to Stuart Miles, "The search engine has been heavily integrated into the OS, so it would be hard to offer an alternative."
Of course. Integrated. I recall that argument playing a big role in the US Justice Department's antitrust litigation against Microsoft. Remember the doctored video, presented as "proof" that you couldn't remove the integrated IE browser without a downgraded experience?

To finish the cast of crusaders on the list, I don't know who Simon Buckinham is, the last name in our cast of crusaders, unless he's the guy who writes Appitalism, and who wrote a piece about Google allegedly doing secretive things that you find praised by those insulting Google, a piece that claimed that Google "duped advertisers" out of money, an article that was submitted to the FTC when it was considering the Google purchase of AdMob. The blog post is no longer available on Appitalism at the place that article links to. Maybe because he lost, maybe because it wasn't so, which would make it libelous? The deal was approved in May to his chagrin.

So the Google-Slayers are heavy-duty legal guns, with ties to Microsoft. As for the three small complainants in Texas, I am questioning now why anyone would base an investigation on complaints by them. Without the Google Slayers pushing their cases, I doubt it would ever have happened. SourceTool already lodged a complaint against Google in a courtroom and failed miserably. Another quite similar antitrust complaint was filed by a company that TradeComet, which owns SourceTool, tried to join as a plaintiff in a class action that also went down in flames, with sanctions ordered by the court for filing frivolous claims, as I'll show you. So why would the attorney general in Texas, or anywhere else, open an investigation into these complaints, I am wondering? Why would he take it seriously, after that kind of water under the bridge?

Let's take a closer look at the complainants in Texas, none of whom to my knowledge have any particular ties to Texas more than to any other state, and see what we find out about the folks adopted by the crusaders. It will give you the flavor of this campaign. I can't help but ask, are these three really the best cases these crusaders could find? If so, I think it speaks well of Google's business practices.


Let's start with Foundem, because it filed a similar complaint with the EU Commission last February, joined by Ciao, and here's a little background from Tom Krazit of CNET on Ciao:

And so it begins: the European Commission has opened an antitrust investigation of Google.

The Telegraph reported late Tuesday that European regulators have sent a letter to Google asking the company to explain how it ranks search results and advertising after complaints from European businesses such as Foundem, a price comparison site, and Ciao, another price comparison site owned by Microsoft. Those companies--Foundem in particular--have long complained that Google penalized their Web sites in search results under competitive pressure....

In its blog post Tuesday, Google implied that the complaints from Ciao were directed from Microsoft, easily its biggest rival in the tech industry. "Regarding Ciao!, they were a long-time AdSense partner of Google's, with whom we always had a good relationship. However, after Microsoft acquired Ciao! in 2008 (renaming it Ciao! from Bing) we started receiving complaints about our standard terms and conditions," Google said.

Ah. Microsoft again. Foundem holding hands with Ciao, now called Ciao! from Bing. Some of us recall that Microsoft helped fund SCO's wars against Linux, with a primary focus on IBM, another Microsoft competitor. And here they are again, in yet another battle against another competitor of Microsoft's, Google.

Foundem, we learn from the Guardian, has been fighting Google for three years now, trying to make it explain its algorithm, which it claims is unfairly discriminating against Foundem because Google allegedly fears competition from them. Really? The company is a husband and wife and "a computer friend."

Here's what Foundem does: directs shoppers to online deals for goods such as TVs or flights, but has struggled since one day it suddenly disappeared from Google search results for these categories.
Perchance one might call their business model more beneficial to themselves than to Google's users? Google's point of view:
"We can't comment on individual cases," said a spokesman. "But our systems are designed to produce the most relevant and useful results for the people who use Google search.

"Where sites are adding little value or original content, they are likely to fall in our ranking. Surveys of our users show that what they most dislike when they search is to receive multiple results from sites showing the same or very similar content."...

One problem faced by Foundem is that as a price comparison service its raison d'etre is to pull in information from elsewhere on the web so a lot of the text – such as product descriptions – will be replicated. Google says its users do not want to be presented with a list of options on the site they visit, while the Foundem pair point out that is, in essence, all that Google itself does. Meanwhile, Foundem results are appearing relatively highly on Yahoo and Bing – Microsoft's search engine.

Google set up to be useful to its own users, after all, not to push companies that try to make money from clicks, so if it thinks you are annoying its users, what do you expect? Google's blog post says this:
Occasionally, we’re asked about the “fairness” of our search engine -- why do some websites get higher rankings than others? The important thing to remember is that we built Google to provide the most useful, relevant search results and ads for users. In other words, our focus is on users, not websites. Given that not every website can be at the top of the results, or even appear on the first page of our results, it’s unsurprising that some less relevant, lower quality websites will be unhappy with their ranking.
If you wish to be a real competitor to Google, why not set up your own search engine like they did? No one helped them get noticed. I find it very odd that businesses that parasite on Google think that Google owes them a leg up. No one gave Google a leg up, and what, I can't help but ask, is Reback doing with a company like this?

The Guardian in that 2009 article mentioned SourceTool, one of the other Texas complainants:

Exactly how AdWords operates is to be tested in the US courts by a company called, owner of search engine, which has accused Google of "engaging in predatory conduct to block search traffic by imposing massive, unjustified price increases" through the system.
May I inquire why Texas? Or are these folks shopping around all the states looking for someone to nibble? I can't help but notice that this MediaPost article has a quotation from the Ohio attorney general attacking Google and in support of, one of the Texas complainants, which was sued by Google in Ohio for some money it owed and countered with an antitrust allegation, as I'll show you in a bit:
Ohio Attorney General Richard Cordray recently weighed in against Google. He argues that accepting Google's argument "would immunize an entire industry from the reach of this state's antitrust laws."
I see his point, but consider the other side of the coin. What about if some company, wishing to damage its competition, funds or in other ways encourages bogo antitrust complaints in one state after another? What's the remedy there?

Here's a recent article by Chris Lake on eConsultancy with an update on the Foundem v. Google story:

In August last year I wrote an article called Foundem vs Google: a case study in SEO fail. Foundem had been complaining about Google, due to its lowly search rankings.

My article was based on a story published in The Guardian, which pretty much sounded like a big bunch of sour grapes to me. As such I called out Foundem, which didn’t appear to be doing an amazing job of SEO best practice.

But Foundem insisted that The Guardian article had been heavily edited, claiming that the newspaper’s lawyers didn’t want it to use words like ‘penalties’ and ‘whitelisting’ in the article, when referring to Google. Big, scary Google.


Foundem claimed that its inconsequential search rankings were due not to any SEO-related issue, as I had stated in my article, but the result of some hideous penalty imposed by Google. The reason for the penalty? The firm says via its Search Neutrality blog that it was penalised “simply because it is a vertical search engine” (as opposed to a technical or spam-related penalty). This seems thoroughly unlikely given that Google indexes thousands of other search-based companies.

A penalty would explain why the site wasn’t ranking brilliantly, but then again so would other things. As Fresh Egg's Jaamit Durrani says: “Most of the time people claim ‘penalty’ when it is just a roadblock (eg iframes/javascript) or a filter (eg duplicated / scraped content). Often fixing these onsite issues can lead to immediate reinclusions.”

I asked Google to comment, and while it won’t talk about individual sites, it did confirm that it does not whitelist sites, nor does it punish sites purely due to their sector. Google’s Peter Barron said:

“Our algorithms are designed to provide users with the best possible search results. We publish our guidelines for webmasters and advertisers, but we do not penalise specific types of site.

“Vertical search sites are important to us and our users - indeed sites which offer added value often come top of our search rankings. We make all of our search quality assessments based solely on relevance to the user.”

None of which sounds like a sector-based ‘penalty’ to me, but then again…


Earlier today I endured a fiery 35-minute call with Foundem CEO Shivaun Raff, who advised that: “On 1 December our penalty was lifted”, adding that it led to a 10,000% surge in traffic. And this apparently proves that my previous article “is incorrect from the headline down”, and should be corrected.

I refuse to touch it, as I maintain that the Foundem site doesn’t tick enough best practice boxes in order to secure brilliant search rankings, and I’m not convinced that there was a penalty. Foundem says there was one. Google won’t confirm this, but says that it doesn't punish sites simply because they operate in vertical search, as Foundem claimed.

Regardless, I stand by what I said, penalty or no penalty: there are enough reasons why the Foundem site might not rank so well. It isn’t a niche site. It contains tons of duplicate content, aggregated from various sources (Update: Foundem crawls and scrapes, as well as using feeds). There’s not much in the way of original content. It resembles a link directory.

There were technical issues too, though some of these appear to have been fixed.

Jaamit Durrani explains: “Two of the major issues that Foundem had in summer was content in iFrames and content requiring javascript to load – both of which I looked at in August, and they were definitely in place. Both are huge barriers to search visibility in my book. They have been fixed somewhere between then and the lifting of the supposed ‘penalty’. I don’t think that’s a coincidence.”...

The fact is that Google now dominates is simply because it does search very well, and its competitors have repeatedly failed to match it, at least as far as the user experience goes. And the user experience is incredibly important. Web users love the simplicity of the Google search experience.

And obviously the results must be of a high quality, otherwise searchers would quickly switch to some other engine for answers.

So yes, yes, Google is massive, but it’s massive for a reason. It didn’t get to where it is through nefarious means, but because it works better than any other search engine, at least in the eyes of the people who use it.

Foundem has its own website about all this, which it cunningly calls Search Neutrality, if you would like to hear them tell their own story their way. Here's their latest explanation of their EU complaint:
The principles of search neutrality are both reasonable and straightforward to implement. Foundem’s EU Complaint, for example, proposes that a search engine should not be allowed to discriminate in favour of its own services; and that where it does insert its own services, these should be clearly differentiated from real search results just as sponsored links are. Foundem’s Complaint also addresses Google’s increasing use of arbitrary and discriminatory penalties, which, through error or design, exclude legitimate sites from search results, irrespective of their relevance. Foundem proposes that search engines should be transparent about the rationale behind these penalties and that affected sites should have access to a timely and transparent appeals process, so that penalties applied in error can be quickly rectified.

Google’s standard reply to the observation that it is dominant in search is to point out that its competition is “just a click away”. While it is true that users have a choice of alternative search engines, it is equally true that web sites do not. Because nearly all users choose Google, there are no alternative search engines by which web sites can reach them. The unique role that Google plays in steering traffic and revenues through the global economy means that Google is not just a monopoly; it is probably the most powerful monopoly in history.

I don't know. If Microsoft couldn't favor its own services with Bing, I dare say their search engine would die altogether or at least disappear under the sea in the Bermuda Triangle. That's about all it does, from what I've seen. Foundem said this about the "penalty" that doesn't sound like one at all to the rest of us:
In a post last August on its site, Foundem said: “Google has always used various penalty filters to remove certain sites entirely from its search results or place them so far down the rankings that they will never be found.

“Whereas these penalties used to be reserved for spam, or sites caught attempting to cheat Google’s algorithms, they are now increasingly targeted at perfectly legitimate vertical search and directory services.

“It may not be coincidence that, collectively, these services present a nascent competitive threat to Google’s share of online advertising revenues.”

Foundem claims that Google lifted the “penalty” in December, resulting in an increase in traffic from Google searches of “10,000pc overnight”.

I'm guessing Foundem was so hot on the phone about it, because unless there is an illegal penalty, Foundem has no case. Foundem recommends that you read Cade Metz at The Register, who found their arguments persuasive, and in this article in March explains why the antitrust action is not about Microsoft. Allegedly. You can find the complaint [PDF] Foundem also filed with the FTC in the US in that article. Such tireless complainers, these three are.


Let's look at SourceTool, because it was one of those who also filed a complaint with the US Justice Department, seeking to block the Yahoo-Google deal. We know how that played out and who benefited the most when the deal died.

Here's a 2008 article on Traffick, which specializes in info on business search, that mentions SourceTool complaining to the US Justice Department about Google's Quality Score algorithm. SourceTool built its entire business model around Google and AdWords, apparently. The New York Times had an article too, by Joe Nocera, that same year which described it like this:

A few days ago, Dan Savage had his lawyer send a nine-page, 4,000-word letter to the antitrust division of the Justice Department. Mr. Savage, 59, runs, a business-to-business Web site that acts as a directory, listing — and ranking — hundreds of thousands of companies that sell industrial products.

Like many Internet entrepreneurs, Mr. Savage built his business model around Google when he started it in late 2005. Using Google’s AdWords program, he planned to make bids on specific search terms — “ball bearings,” say — that would ensure that a Sourcetool ad would be placed high on the right-hand side of the Google page whenever someone searched for places to buy ball bearings. That’s how paid search works.

But because his was a free site, he needed to generate his revenue from advertising. For that, he used Google’s other ad program, AdSense, which placed targeted advertising on the right-hand page of the Sourcetool home page whenever a user “clicked through” to Sourcetool to find a company that would sell him ball bearings.

Not exactly inventing the telephone or anything. The complaint had to do with a change in Google's minimum bid requirement which more or less, according to Savage, discriminated against his site. Savage, so the story goes, came to believe, or at least claim, that Google was discriminating against SourceTool because it viewed it as a competitive threat.

Uh huh.

TradeComet describes itself more flatteringly in its Complaint [PDF], quoted in the judge's Opinion and Order [PDF] dismissing its case, like this:

TradeComet operates the website, which attracts “highly-valued search traffic of businesses seeking to buy or sell products and service to other businesses,” and provides what is commonly referred to as a “B2B” (for “business to business”) directory. (Compl. ¶ 4.)
But a rose is a rose by any other name, so Traffick calls SourceTools' model "straight click arbitrage," and here's what it thinks was the real problem instead:
Sourcetool's owner suspects that Google simply doesn't like the site because it is "another search engine," or because it competes with, a Google partner.

I doubt this is it.

Anyone with experience in the game can sense what Sourcetool is, and that sense would be augmented or confirmed by a peek at the mix of destination URL's within the AdWords account, no doubt: it's pretty much straight click arbitrage.

Recall that straight click arbitrage is a business model that is all but banned by Google.

So TradeComet was fighting to preserve the right to run a straight click arbitrage site, which Google I gather frowns on, because it doesn't want its users used or annoyed. Nocera includes his impression of the algorithm in question:
Still, the more I dug into Mr. Savage’s complaint, the more I came to think that it offers a nearly perfect example of why antitrust issues are so difficult to sort out. Listening to Google executives explain how the company’s algorithm works, I came away largely convinced that Google was operating in good faith.

“Our quality score system is an impartial algorithmic score that is designed to enhance the experience of the user, and the vast majority of advertisers benefit from it also,” said Nicholas Fox, Google’s product manager for ad quality. In addition to rewarding sites that have the qualities Google and its users like, it also tries to weed out, and punish, bad apples.

For instance, it doesn’t want companies that buy search terms and then play some form of bait and switch. The imposition of high minimum bids is Google’s way of weeding out the bad guys....

Though nobody at Google would say so directly, I got the distinct impression that Google thought Mr. Savage was practicing a form of ad arbitrage with his site. He did, after all, bid on search terms and make his money on advertisements on his site.

Yet Nocera goes on to say that monopolists can't help acting like monopolists, and if you have a problem, they always think they are right, and you have no recourse.

Savage instead of altering his business model sent his letter to the US Justice Department, and here's when and why, according to the Times:

Mr. Savage is hardly in a position to sue Google for antitrust violations, of course. But he did feel there was one thing he could do: tell his story to the Justice Department, in the hope that it might help stop the Google-Yahoo advertising deal that was announced in June. Hence the letter. “Google’s conduct is plainly consistent with acts of monopolization and attempted monopolization,” Mr. Savage’s lawyer wrote in his letter to the Justice Department. He added that “Google has achieved and maintained its market share through anticompetitive exclusionary conduct.”
Except TradeComet, Mr. Savage's company, did sue Google. What is there to stop anyone, particularly if firms like Cadwalader are right there, willing to help? Of course, the Yahoo deal fell apart, thanks to folks like Savage, who by then ought to have been Microsoft's new BFF, if he wasn't previously. Not that Bing seems to have benefited much.

Eric Goldman describes the complaint that TradeComet brought against Google back in 2009 like this:

The complaint itself is the typical grumblings of an unhappy advertiser who wanted more traffic for less money. We've heard these complaints from advertisers many, many times before. Advertisers tend to be a particularly hard-to-please bunch. TradeComet tries to connect the dots that Google's price increase was due to Google's efforts to squelch SourceTool's competition with Google, which would be a more convincing argument if anyone actually believed that the two were bona fide competitors.
The TradeComet lawsuit went nowhere, and Google's motion to dismiss was granted in March of 2010, based on lack of subject matter jurisdiction and improper venue. You can read Google's arguments in this Reply Memorandum in Support [PDF] of the motion, which also informs us that TradeComet was founded by Don Savage, a Harvard Business School graduate. Google tells the court, "TradeComet has volunteered to be a class representative in litigation previously filed in Santa Clara County." Now TradeComet was arguing it shouldn't have to go there. Here's what that is referring to, a Declaration by Daniel Savage [PDF] in yet another antitrust action against Google, Kinderstart v. Google. In it, he states that when he heard of the lawsuit on October 23, 2006, he "began considering to join Plaintiffs as a potential class member... It is TradeComet's intention to join this class action as a co-representative plaintiff on behalf of the classes." The date of the declaration is October 26, 2006, and the venue is California.

He didn't get that opportunity, because the case was dismissed. Maybe he's fortunate it worked out that way, because both Kinderstart and its lawyer were sanctioned by the court [PDF] for bringing frivolous claims, after the court granted [PDF] Google's motion to dismiss in March of 2007. Here's Kinderstart's complaint [PDF], by the way, if you want to read it. It sounds quite a lot like all the other complaints. I suggest that the Texas attorney general read it, frankly. The lawyer was described as overreaching, filing claims without first gathering evidence sufficient to sustain them. It's rare for a lawyer to be sanctioned. But it happened. That's who Dan Savage was volunteering to help. Kinderstart had to pay [PDF] for Google's attorneys' fees for the motion to dismiss also, although the court reduced the amount, because of the lawyer's circumstances and his lack of bad faith:

There is no evidence that Yu acted with subjective bad faith in including the sanctionable allegations, and he appears not to have extensive financial resources. The Court will grant sanctions “sufficient to deter repetition of such conduct or comparable conduct by 12 others similarly situated.”
And here's something strange to me. In the Opinion and Order granting Google's motion to dismiss the TradeComet litigation, the court said that TradeComet could bring the case in California, the proper forum, instead of in New York, where it had filed improperly, having agreed in the terms with Google that all disputes would be handled in California:
Because TradeComet’s claims fall within the scope of the relevant forum selection clause that requires that this action be brought in California, and because enforcing that clause would be neither unreasonable nor unjust, Google’s motion to dismiss is granted.
But instead of going to California, TradeComet has appealed the New York order, and that is still pending, as you can verify on Justia's page. Why not just file in California? I can't understand that. Because it's "a crusade" I suppose. These plaintiffs are positively fixated on Google. Kanter is quoted in American Lawyer like this:
“The question isn’t whether Google is the next Microsoft,” said Kanter, who has worked closely with Rule for a decade on Microsoft and other cases. “The question is whether Google is the next monopolist.”
The *next* monopolist? Was he misquoted? If Google isn't yet a monopolist, on what basis are they suing them currently? Here one explanation, not that it satisfies:
"The markets are changing rapidly," said Albert Foer, president of the American Antitrust Institute in Washington, D.C., which has called on regulators to keep an especially close eye on emerging technologies like mobile advertising networks. "You certainly have to watch these guys like a hawk, figure out where they're going and figure out what each move means strategically and whether it will be (anti-competitive) in the future."
They want to harass them with investigations now in a preventive way because they might become anticompetitive *in the future*?

When people say things that don't make sense legally, in my experience it's because what they are doing doesn't make sense legally, and that instead of being about a legal issue, it's about a manufactured legal issue being used for competitive purposes. I'd call that a misuse of the courts, personally. You can't sue people for antitrust violations that haven't yet happened, unless somebody just changed antitrust law. Can you punish a company for success because they are so successful that it worries you that someday they might do things that are illegal? That's Alice in Wonderland territory. But here's what you can do: you can launch a huge media storm about "violations" that ultimately get tossed out a decade later when no one is still paying much attention. And that hurts your victim. Unjustly.

When Microsoft was fined by the EU Commission the last two times, it was for *actual* antitrust violations, violations that were well known to the world long before the Commission got involved. There is a difference. If you've forgotten all that, here's ECIS's Microsoft - A History of Anticompetitive Behavior and Consumer Harm [PDF], and Groklaw has a page just on Microsoft's legal cases, and you'll find a mountain of antitrust evidence, if I may borrow a phrase, on that page.

Maybe there's a reason for appealing the loss, instead of the obvious and easier and less costly choice of filing again in California, where they should have filed in the first place, that isn't jumping off the page. Here's what is jumping: the familiar feeling that maybe they are appealing because it's more costly for Google this way, not to mention dragging the entire process out in the media. Shades of SCO, the kings of dragging the process out to the very last drop. I don't read their minds, of course, but it's at least conceivable, isn't it? I mean, it happened once. We watched it in slow motion, so we know it can happen. Just saying.

Interestingly enough, the third complainant mentioned in the article about the Texas investigation,, also had an earlier dispute with Google. Here's Eric Goldman writing about that dispute in February of this year, and he unearthed some oddities that made him ask about a Microsoft link:

Meanwhile, an intriguing and unexpected new antitrust battlefront has opened up. myTriggers is run by NexTag alums and, IMO, has an even worse brand name than TradeComet. Do a search for “mytriggers” and see if you can avoid juvenile giggles. myTriggers’ properties include three shopbots/shopping comparison websites:, and A quick review of these websites revealed no obvious reason why I would choose them over better-known shopbots.
If you do that search, you'll find is the first result, of course. Here's a bit more from Bloomberg last April on the dispute, after Google filed a motion to dismiss. The Ohio attorney general, it says, joined in the dispute:
Cordray joined the dispute after Google sought to have the counterclaim thrown out in an April 2 filing in state court in Columbus, Ohio. Google said the Valentine Act, the state’s antitrust law, doesn’t apply because the federal Communications Decency Act precludes state regulations.

Agreeing to Google’s claim “would immunize an entire industry from the reach of this state’s antitrust laws,” Cordray said in court papers filed April 26. Preempting the Valentine Act with the federal law “would result in a significant restriction of antitrust enforcement in Ohio,” he said.

To understand Goldman's point, you need to know that law firms can't represent a new client if there is any conflict with another client, at least not without the first client's approval and the second's. Here, it was Microsoft suggesting it.

Main Justice spoke with the lawyer representing myTriggers and TradeComet, Rick Rule of Cadwalader, back in February, and he pooh-poohed any Microsoft involvement, or tried to:

In January, Google filed suit against a comparison shopping site in Ohio state court, hoping to collect on $335,000 in unpaid bills. Instead of paying the bill, myTriggers enlisted the help of both Microsoft’s antitrust lawyer, Rick Rule at Cadwalader, Wickersham & Taft, and famed trial lawyer Stanley Chesley ... The company then filed a counterclaim earlier this month accusing the search giant of violating antitrust laws by manipulating search results to punish potential rivals.

“Google employs a variety of exclusionary acts that ensure that rivals cannot divert traffic to their own competing search websites, particularly if the effect of such diversion is substantially to compete against Google’s dominant platform,” myTriggers said in its complaint.

Rule also advises another search engine,, which filed a similar suit against Google in a New York federal court last year.

Observers have questioned both lawsuits’ ties to Microsoft, but in an interview with Main Justice, Rule denied Microsoft’s interest in either matter.

“Microsoft is not involved,” he said, “our clients are only the named plaintiffs.” Rule declined to explain how his firm was hired in either case, but did say: “It is my practice to answer phone calls, and I’ve been blessed that I haven’t had to go out and elicit clients.”

Microsoft-related entities also appear to be going after Google on the other side of the Atlantic.

In a blog post last night, Google acknowledged that it had received word from the European Commission that it was investigating complaints filed by three companies accusing Google of manipulating its search rankings to punish other search engines and engaging in other anti-competitive conduct.

“This kind of scrutiny goes with the territory when you are a large company,” wrote Google senior competition counsel Julia Holtz, on the company’s blog.

Was that a Freudian slip or a misquote? "Our clients are only the named plaintiffs," Rule is said to have represented. That could be taken as a slip of the tongue, in that you could interpret it to mean that while they are the named plaintiffs, others involved are not named. Or maybe he said, or meant to say, "Our clients are the only named plaintiffs." That still is lawyer-ese, in that it doesn't deny that Microsoft might have made a call or shown interest in other ways, financial or otherwise, while not wishing to be a named plaintiff. And in fact, was it a true statement, now that we found out that Microsoft sent SourceTools to Mr. Rule at Cadwalader? Microsoft has no interest, Mr. Rule?

You probably recall that in the SCO v. IBM case, evidence of Microsoft involvement surfaced after SCO's then CEO denied that Microsoft was in any way involved.

Here's myTriggers' Answer with Counterclaims. It's from Harvard Law School's syllabus page for its class to read for Antitrust, Technology and Innovation: Seminar (Spring 2010). It's a great resource.

American Lawyer points out one other interesting detail:

Cadwalader’s MyTriggers counterclaim relies on Ohio’s Valentine Anti-Trust Act, but the TradeComet case was brought, in part, under section 2 of the Sherman Antitrust Act. Back in the U.S. v. Microsoft days and before, repealing that law became something of a crusade for Rule. He gave speeches and wrote op-eds calling for its repeal, calling it “a cure that is worse than the disease.” (Asked about the apparent contradiction, Rule says that the law has changed over the years. He also quotes former Harvard University professor Graham Allison: “Where you stand depends on where you sit.”)
Indeed. I gather that if you sit on Microsoft's lap, perchance you decide to go on crusades against Microsoft's competition. Then there's no telling what you might say.

So we've learned some interesting facts. First Cadwalader, Microsoft's antitrust firm, felt free to represent another small client in an antitrust case against Microsoft's competitor, with Microsoft referring at least one of the cases to the firm. And we've learned that the current complaints against Google in Texas are not from unrelated entities. Someone is spending serious money to go after Google in one venue after another. From American Lawyer:

Neither Google nor Wilson Sonsini believe that MyTriggers and TradeComet are just ordinary small businesses that happened to find a lawyer with relevant expertise. “It’s become clear that our competitors are scouring court dockets around the world looking for complaints against Google into which they can inject themselves, learn more about our business practices, and use that information to develop a broader antitrust complaint against us,” says Adam Kovacevich, a Google spokesman.
That's what they think it's about, that these lawyers are on a crusade all right, a crusade to use the legal system to try to dig up some dirt on Google. I think it's also possible that someone with a failing search engine would like to find out more details about someone else's successful search algorithm, and would like to use discovery for that purpose.

It's certainly hard to understand the myTriggers case unless it's a fishing expedition of some kind. It happens that myTriggers owed Google some money for AdWords, which it couldn't pay. Then when Google tried to collect, myTriggers showed up in court over a simple collection matter with three law firms, one of them Cadwalader, with antitrust counterclaims, just like Psystar did with Apple. Eric Goldman explains:

About a year ago, Google was sued by an obscure company called TradeComet for various antitrust violations. TradeComet’s lawsuit wasn’t the first private antitrust claim against Google; other scrappy claims had arisen over the years. However, none of them were serious challenges or went anywhere.

The TradeComet complaint looked equally low-merit, so I would have probably ignored it except that TradeComet’s counsel was the NYC-based Cadwalader Wickersham & Taft—which also does antitrust work for Microsoft. Those two facts could be completely unrelated, but it’s possible that they aren’t. First, I can’t imagine Cadwalader would jeopardize a lucrative relationship with a Fortune 50 company to take on a low-merit lawsuit for a no-name company. Therefore, either Cadwalader viewed the various antitrust issues as so unrelated that no legal or business conflicts were created—a risky judgment given Microsoft’s sensitivity about both Google and antitrust—or Microsoft approved/acquiesced to Cadwalader’s representation of TradeComet. Second, Microsoft has been engaged in a multi-year, multi-front effort to harass Google on antitrust issues, and Cadwalader’s involvement would be consistent with that campaign....

This is where the story gets weird. Rather than plead poverty to Google or mount a generic but low-cost contract defense, myTriggers retained THREE law firms and also brought a counterclaim under Ohio’s state antitrust law, the Valentine Act. The three law firms are: (1) local Columbus counsel, presumably initially retained to handle the collections matter, (2) a Cincinnati firm that includes Stanley Chesley, Ohio bar #852 (!), a litigator of some renown who has enough gravitas to impress most judges; and (3) the same four-person DC-based antitrust team from Cadwalader that also represents TradeComet.

I am struggling to make sense of myTriggers’ litigation choices. Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.

Either way, how did Columbus-based myTriggers connect with the DC-based Cadwalader team? Did myTriggers independently call up Cadwalader? The TradeComet lawsuit got some press, but that was a year ago. If myTriggers really thought it had a case, it might have preemptively sued Google rather than waiting for Google to sue it. Did myTriggers get connected to Chesley for some reason, who then recommended bringing in Cadwalader? Did Cadwalader reach out to myTriggers? If so, I would like to know more how this happened and how this matter pertains to Cadwalader’s relationship to Microsoft. I’m also confused about the relative roles of Chesley and Cadwalader. It’s not immediately obvious why myTriggers would need both Chesley and Cadwalader or be willing to fund both.

Perhaps he's being polite or doesn't wish to be sued when he writes that he is struggling to understand myTriggers' litigation choices. Personally, I'm having zero difficulty understanding all of this. Are you? If you visit the last link in the MediaPost snip, here's what you find:
Comparison shopping site myTriggers is alleging in a lawsuit against Google that the search company hiked the cost of myTriggers' pay-per-click ads for anticompetitive reasons. But myTriggers previously said in an insurance claim that server crashes spurred Google to raise prices, according to documents obtained this week by Online Media Daily.

myTriggers recently amended its complaint to include allegations that its data centers overheated in January of 2008, resulting in equipment damage and layoffs. But the insurance claim filed two years ago alleges in far greater detail that the overheating incidents resulted in server crashes, which in turn caused a drop in the company's quality score.

Hmm. So is myTriggers trying to collect double, once from the insurer and then from Google for something that in one venue it said was an issue with servers melting and then in another said was the result of Google discrimination? Which is it? I know. They'll say both, I suppose. Here's the complaint [PDF] against the insurer, so you can decide for yourself. That insurance case settled back in 2009 by stipulation [PDF], so we don't get to read the terms. My question would be, did myTriggers get a money settlement? Here's myTriggers' Answer with Counterclaims [PDF] against Google in Ohio, so you can follow the story.

Discovery should be fascinating. Who is paying Cadwalader and the other firms? What promises are in this picture? Obviously a dead company can't pay them. Presumably they are working on spec, then? Like Boies Schiller originally claimed? No doubt it's all set up to look innocent enough, but discovery is called discovery for a reason.

In short, I've concluded that there is no tech debate about antitrust law or anything as high-faluting as all that. It's a crusade, or a dirty trick, depending on your point of view, trying to dig up dirt on Google and destroy its credibility. And may I please remind everyone that just because a claim is lodged in court, that doesn't make it true. Surely we learned at least that from the SCO debacle. Sometimes it's just cynical marketing. And you know who is really good at that.

Update: Eric Goldman has now responded to the news, in an article titled Texas AG Investigating Google Search, and I Have Questions. The Biggest: Are You Kidding Me???. One snip:

Is There a Role for State AG Enforcement Against Google's Search Practices? I'm always amazed by people who forget that Google’s organic search and ad ordering are editorial processes fully protected by the First Amendment. Part of this myopia is Google's own fault. It has so successfully sold itself as a technology platform that we forget about the editorial processes embedded in its core business. As a result of those judgments, any legal challenges to Google's search practices runs squarely into serious First Amendment considerations.

I'm also intrigued by the potential role of 47 USC 230(c)(2), a federal law which basically insulates websites' filtering decisions from any state law causes of action (except state wiretapping laws and possibly state IP claims). The interplay between 230(c)(2) and antitrust claims is hardly clear, but it’s possible that the Texas AG's efforts are completely preempted by the federal statute.

Remedies? Let's assume Texas can actually establish a case against Google's algorithms. Then what? Will Greg Abbott start telling Google how it should run its search engine? It's hard to imagine that the cure will be better than the disease.

Update 2: In the most recent 10K that Google filed, it describes its mission like this, and the description fairly shouts "First Amendment":
Our Mission

Our mission is to organize the world’s information and make it universally accessible and useful. We believe that the most effective, and ultimately the most profitable, way to accomplish our mission is to put the needs of our users first. We have found that offering a high-quality user experience leads to increased traffic and strong word-of-mouth promotion. Our dedication to putting users first is reflected in three key commitments:

  • We will do our best to provide the most relevant and useful search results possible, independent of financial incentives. Our search results will be objective, and we do not accept payment for search result ranking or inclusion.
  • We will do our best to provide the most relevant and useful advertising. Advertisements should not be an annoying interruption. If any element on a search result page is influenced by payment to us, we will make it clear to our users.
  • We will never stop working to improve our user experience, our search technology, and other important areas of information organization.

We believe that our user focus is the foundation of our success to date. We also believe that this focus is critical for the creation of long-term value. We do not intend to compromise our user focus for short-term economic gain.

I think you can readily see that if you are providing "the most relevant and useful" results, you are making choices. That's an editorial function. And that relevancy doesn't happen if Google just offered unsorted bulk results. That's the whole point, that they make it easier to find what you are looking for, not what businesses want you to find to suit their bottom line. Google is trying to suit *our* needs, us common users, because they are convinced that it is the secret to their success. The Internet was already unsorted, and what Google did was make it possible to find what you were looking for. You don't have to use Google if you like unsorted results. Just don't use a search engine, and see if you like the effort you then will have to put forth.

And if you think Google would be better if it were more "neutral", then how do you define your term? Is it more "neutral" if you remove the editorial function? Yes. But then you can't find anything.

And if there is an editor, who else gets to decide what is useful and relevant?

Do you see the point that Professor Goldman is making about the First Amendment? Someone has to be editor, if you want sorted and categorized results that make things easy to find. Google provides that editorial function. And just as you can't demand that the government force Time magazine or your local paper to cover your high school PTA meeting unless they feel its relevant and useful to their readers -- Time probably won't and your local paper might -- so you can't tell Google how to do what they do, because if you do that, the First Amendment has no meaning.

And let me ask you something: do you really want the government to run search engines so it gets to decide what results you get to see? Are you out of your cotton-pickin' mind?

I'd like to mention one final thing. Groklaw is a success despite forbidding Google and other search engines from crawling our most important pages. How could that be? Most of our readers come from word-of-mouth. That's been true from day one. It can be done. If you really offer what your target audience is looking for, they will find you and they will stick with you through thick and thin. I have lived it, and so I can testify that you don't actually need Google to find and retain your audience, if you offer something that they genuinely value.

Update 3: I see On Technology Now sees access to the secret Google algorithm as the goal of the Texas matter, as expressed in this entry, "Could Texas AG antitrust review lead to a leak of Google’s PageRank algorithm?":

The cynical former litigator in me is wondering whether someone lobbying the Texas AG’s office is trying to put pressure on Google by raising the specter that the company’s super-secret PageRank algorithm might be subpoenaed. Even with a court secrecy order, disclosure of the algorithm in response to a subpoena would increase the risk that the algorithm’s details might end up published by a WikiLeaks wannabe.


A Peek Behind the Curtain of the Texas Antitrust Complaints against Google - Updated 3Xs | 463 comments | Create New Account
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Corrections here please
Authored by: tiger99 on Sunday, September 05 2010 @ 01:05 PM EDT
If needed, to assist PJ's QA process.

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Off topic here please
Authored by: tiger99 on Sunday, September 05 2010 @ 01:07 PM EDT
As always, please make clickies where appropriate, remember to comply with PJ's site rules, and always preview before posting to check that all is well....

I know, I am nagging.....

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Newspick discussions here please
Authored by: tiger99 on Sunday, September 05 2010 @ 01:09 PM EDT
I know I don't need to remind you all about putting the topic of the newspick in
your title.....

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Comes may come here......
Authored by: tiger99 on Sunday, September 05 2010 @ 01:10 PM EDT
Those of you who are working on the Comes documents know what to do....

[ Reply to This | # ]

Two questions....
Authored by: tiger99 on Sunday, September 05 2010 @ 01:14 PM EDT
1. Is there any law anywhere (except in Germany?) to prevent the Monopoly from
mischief-making in this way?

2. Should there be such a law?

[ Reply to This | # ]

Authored by: complex_number on Sunday, September 05 2010 @ 01:45 PM EDT
A British Price comparison Service?

I'm British and I've never heard of them.

They must be a bit part player indeed.
A glove puppet?

Anyways, I went looking. Sure enough their site is what it puports to be.
No Flash (Now that's a surprise).
They have an ad mentioning Goole Search Results on their homepage. Well they are
part of this campaign so it is to be expected.

I went searching for some waterproof motorcycle trousers. I did the same search
using other sites only a few days ago.

Frankly, most of the stores that appeared in the search results, I have never
heard of before. Certainly the list does not include the major retailers in this

Therefore, my opinion on Foundem (from this one specific search) is that they
are very second rate.
If they can't include hein gericke or rivetts then sorry they have failed.
(These two are IMHO the top retailers in this area).

So, I wonder if they are just leaping onto someone's coat tails in order to get
themselves a wee bit better known?

The only plus part is that the site seems quick and easy to use plus it doesn't
use Flash (I have flashblock installed). That is about it really.

Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42" or is it 1.618?

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Shopping Comparison Sites
Authored by: Anonymous on Sunday, September 05 2010 @ 02:29 PM EDT

My opinion of "shopping comparison sites" is that most of them are useless wastes of bytes that are looking for "click-though" revenue and I definitely don't want them to appear in any of my search results. When I am looking for a product, I want to be taken directly to web sites of companies that sell that product. I don't want to be directed to some company that doesn't even sell the product.

If Yahoo or Bing (which are now the same thing) don't filter out "shopping comparison sites", then so far as I am concerned that makes them an inferior search engine. A good search result is one that takes me directly to the canonical source. If shopping comparison sites appear anywhere on the first page of a search that I am making, I take that as a sign that I need to try different search terms.

There are a lot of companies on the Internet that are bottom feeding scum. They pollute the web with their efforts to make a few pennies from high pressure advertising. One of the major functions of a search engine is to filter these companies out. Any search engine that can't do that is a complete failure as a modern search engine. If Bing/Yahoo can't filter these sites out while Google can, that reflects badly on Bing.

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I don't go to Google, I avoid Microsoft
Authored by: kawabago on Sunday, September 05 2010 @ 03:15 PM EDT
Microsoft has abused me and everyone else in the industry and that is why
Microsoft's business is waning. Microsoft has been a bully and no one wants to
play with a bully. New businesses are growing up outside of Microsoft's sphere
because everyone now knows that tying your business to Microsoft will eventually
bankrupt you. You reap what you sow and Microsoft has sown fear, uncertainty and
doubt. A harvest that no one wants.

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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google
Authored by: Anonymous on Sunday, September 05 2010 @ 03:38 PM EDT
I have no problem with Microsoft calling Google on their profoundly
anti-consumer data-mining practices. Just hope Google does the same to
Microsoft. Consumers can only benefit from this litigation.

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A bit of investigation
Authored by: The Mad Hatter r on Sunday, September 05 2010 @ 03:51 PM EDT

I decided to do a bit of investigation. I knew none of the companies involved (except Google), so I decided to look at Foundem. First I went to their website to see what they offered, and decided to research laptop computers, since that's what I use all of the time.

The Foundem laptop page appears to have been designed several years ago. It has options to display memory configurations of less than 1 gig, 1 to 2 gigs, and 2 plus gigs. Now maybe I'm a hog for memory, but I wouldn't consider buying a machine with less than 4 gigs. Another indication that the site is antique is the processor choice filter, where you can search for PowerPC processors. PowerPC processors aren't in any modern laptops that I know of. I believe that Apple was the last major OEM to use them, and they dropped them a couple of years ago.

So it's quite possible that Google is rating them low, because the site is crap. But let's look elsewhere.

I decided to run searches on a couple of search engines for laptops.

Bing Laptop Search

Cuil Laptop Search

Dogpile Laptop Search

Google Laptop Search

I had only typed in the single word 'Laptop', not buy laptop, or anything else. Curiously one site was heavily biased towards selling laptops, which since I didn't specify I was in the mood to buy, was odd. Three of the sites featured Wikipedia on the first page. Since I hadn't specified why I was looking up laptops, Wikipedia is a good choice as an information resource.

As you may have guessed by now, the worst results were from Bing. The results that Bing gave would have been great if I had have typed 'Buy Laptop', but for a general search they were junk. The other three search engines gave differing results, but all of them were far more useful than Bing.

OK, it was a simple test. I only ran the one search, and I didn't go beyond the first page, but realistically most people don't. They want the search engine to deliver useful information immediately. Google does the best job, I'll give it 4 stars. Cuil and Dogpile are close, I'll give them 3 stars. Bing I'll rate at 1 star.

In my opinion, Foundem isn't willing to do the work to their website that will attract customers. If they were, the website would not show out of date technologies. Instead, they want Google to do the work for them.

As to Bing - it reminds me of Microsoft Windows. Junk, junk, and more junk. No wonder Microsoft is loosing the search market.


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When Attorneys General Attack
Authored by: davecb on Sunday, September 05 2010 @ 04:35 PM EDT

There is a good description of the experience of being investigated by U.S. State Attorneys General at When Attorneys General Attack, at techcrunch and also discussed at slashdot. Topix CEO Chris Tolles got a surprise call from the press, asking about the investigation of his company, some five days before the postmark date of the actual inquiry from the attorney general. To say he was surprised at how much the case was fought in the press would be to engage in positively British understatement (;-))

The implication, to my mind, is that U.S. elected crown attorneys are at risk of being swept up in trumped-up cases, out of a need to be seen to be actively protecting their citizens. This may speak to the willingness of the Texas AG to consider supporting a group of companies that have previously failed to make their case in court.

[Canada appoints its chief prosecutors, under an elected cabinet minister who is not himself a prosecutor. The minister, of course, is under the same political pressures as the elected state AGs]


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Texas AG Investigating Google Search, and I Have Questions. The Biggest: Are You Kidding Me???
Authored by: Anonymous on Sunday, September 05 2010 @ 04:53 PM EDT
Eric Goldman

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Pickpockets, Mob tactics, and Prohibition. Oh, and a CLUE.
Authored by: tyche on Sunday, September 05 2010 @ 06:52 PM EDT
A pickpocket operates under the premise that one should remain undetected whilst
absconding with the goods. Detection leads to observance of possible future
endeavors, which is unprofitable.

Microsoft hasn't learned this principle.

Mob tactics (Nice place you got here. Be a shame if something happened to it)
only work when sufficient fear and lack of observation allow them to work. One
must have sufficient ability to apply force to create fear, and one must remain
unobserved, lest others gang up on one and prevent such behavior by applying
more force. (In this situation force is about the only thing such an agent

Microsoft hasn't learned this principle.

Prohibition generated a lot of "otherly legal" behavior by those who
would profit by selling alcoholic beverages. That "otherly legal"
behavior led to friction between adjacent suppliers who wished to expand their
territory which, in turn, led to violent confrontations. Those violent
confrontations led to observation by the federal government (remember the
Untouchables TV program?). The end result of the federal government's
observation of the mess (aside from the repeal of prohibition) was the
extermination of a number of notable figures of that era, and the incarceration
of one of the king-pins on tax evasion charges.

Microsoft hasn't learned this principle.

CLUE: Microsoft, you are being observed. You are not "too big to
fail" (I'm sure Al Capone thought he was, too). Even OC (I'm sorry,
Organized Crime) learned that drawing attention to oneself can be hazardous to
one's health (to say nothing of harmful to one's pocketbook).


"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

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After Ballmer quit paying people to use Bing he now needs to sue Google. .
Authored by: Anonymous on Sunday, September 05 2010 @ 07:04 PM EDT
Not much new here .
Oh Microsoft did not get one use of Bing from me while paying for it .
They sure asked me to use Bing a lot though.

Simply Stated
You Can't Pay Me Enough To Use Your Trash Microsoft!

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Accumulating evidence for a new antitrust suit against Microsoft
Authored by: Anonymous on Sunday, September 05 2010 @ 09:05 PM EDT
Well, maybe taken individually, Microsoft can claim it's not involved. But as
these things accumulate, I would like to think it will reach critical mass for a
fresh antitrust suit against Microsoft. Or would it have to go back to

Imagine what would happen to IBM if it did the same things Microsoft is doing.
Microsoft is being too clever by half, which I don't think is something juries
appreciate, as i4i shows.

Anyway, these are just more death rattles from Microsoft. It's pathetic, really,
but I must say, as aggravating as this is, I'm enjoying watching Microsoft die.

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Quest to unmask the PIPE fairy, part2?
Authored by: Anonymous on Monday, September 06 2010 @ 12:32 AM EDT

If this investigation goes forward, we could see another long drawn out situation like SCO v. linux. Being a lifelong Texas resident, I really cannot see the AG going beyond a tertiary look because this state is a business friendly place. But if it does go forward, I hope the dots get connected back to the PIPE fairy in Redmond.

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Refuse ads from litigants
Authored by: Anonymous on Monday, September 06 2010 @ 12:34 AM EDT
Could Google refuse to index sites from companies that are suing them?
When spokespersons are asked about on going litigation the usual answer is 'no
comment on matters before the court'.
Would Google be within it's rights not have any dealings with companies while
when they are involved with litigation. Or could the threat of being dropped
from Google seen as monopolist intimidation?

Yes there are other searches, but the only time I use them is when the someone
else has set the default to something else.

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An almost evil business plan
Authored by: tqft on Monday, September 06 2010 @ 03:14 AM EDT
Google has 3 main monopolies that I see

1) main search page hits vs the rest (bing, etc)
2) a ginormous database of the web crawled & the search ranking algorithm
& implementation
3) a very pervasive ad network
[I am not sure about the relative size of what ad networks exist or their
respective values].

The complaints seem focussed on 2). I am going to assume for the moment that
these people have a legitimate complaint about Google's market power - and let's
face it Google dominates search.

The plan:
If these people want to codify and regulate 2) then google should let them. In
the same way that the owners of gas pipelines and electricity transmission
networks agree to carry all gas molecules & electrons without discrimination
by source (except where safety is involved). In return the transmission
operators get a FERC approved (in Google's case the FTC as business monopoly
regulator) rate of return based on current market conditions, asset life,
operational costs and so on. There is a large body of material on this type of
So - who is going to pay?
In the end it is the consumers (ie us mug punters) who do through buying
products. But through what intermediary? A Search Tax on every computer sold
or slab of bandwidth purchased/leased? Or charge the ad providers? A
micropayment system for each search (implemented by the ISPs logging your search
hits)? Using AdblockPlus or a proxy may then become a tax evasion technique.
This would be very cashflow happy for GoogleSearch Inc.
Then GoogleSearch Inc would cut costs (web crawling, response time, outage,
reasearch, freebies - eg gmail), but increase the asset base (eg more reliable -
ie expensive) servers etc in order to bump up the base against which the rate of
return is multiplied. It would also eliminate the drive to innovate as happens
to all regulated utilities as their costs [one of the drivers of innovation] is
Shareholders would be pleased until the shiny new unregulated search came along
and everyone abandoned the good ship Google.

If there was evidence of abuse of monopoly power the US gov could implement any
number of remedies - up to and including breaking up Google (into what

I don't see these approaches being very well thought out - all vague accusation,
no meat and no remedy suggested. If they really thought that google was
deliberately skewing results other than on the basis that they have garbage
sites show some substantive evidence and suggest a remedy.

anyone got a job good in Brisbane Australia for a problem solver? Currently
under employed in one job.

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Poor Microsoft just does not get the 21st century
Authored by: Anonymous on Monday, September 06 2010 @ 04:00 AM EDT
Beginning with the paradigm shift at the end of the 20th century that many individual windows applications being replaced by using the internet to get things done, we have slowly seen the Redmond 800 pound gorilla going from making news to being a technical also-ran. Just look at the stock price in recent years. They have tried to stay relevant by destroying Netscape to capture the web browser/server markets only to see Mozilla and Sun come along and re-energize the corpse. They tried to use ActiveX controls but those became an easy target for hackers rather than creating a windows only web monopoly. Next they attacked linux and now Google. Problem is there is no lock-in because the internet is the wild west and a new player comes along every day like Yahoo!, AltaVista, Metacrawler, MySpace, Facebook, YouTube, Twitter, etc.. Their current business model that uses tie in to IT ethical corruption via gifts and free services for platform lock-in does not play in the internet space. And FUD fails because the web has so many independent voices which cannot be bought and counter the paid shills.

Search will never go over to MSN/Live/Bing or whatever they call it because you cannot force people and apparently cannot even pay people to use it. As a confirmed monopolist, they cannot buy Google. They tried to pay ComScore to hype the growth of Bing! but it had very short legs. So now they are resorting to a familiar recent tactic of using smaller businesses as a proxy to try to confuse the issues which are currently in focus. We saw it with SCO, Psystar, and now these three. It is ironic that this time the cry is about antitrust.

A smart company would realize that Google is the Goldman Sachs of search and would try to leverage it rather than ever hope to usurp it. The use of a symbiotic relationship between massive computing power and extremely complex AI code is what makes money in today's trading or search environments. Even if they stole the algorithm code, how can a simple software company that has made a living on millions of lines of spaghetti code dream of understanding the symbiosis. This is mathematics and science not computer science. I personally see Google become more helpful every time I use it whether it is search, maps, or apps. Conversely when I come across Microsoft search, maps, or apps, I just shake my head and think what were they thinking.

A real unraveling should begin as we approach the next decade. People will see the next paradigm shift as the always connected mobile app device replaces the personal computer. It is already happening and productivity will be boosted as the lag time between starting PCs and PC applications disappears in favor of near instant-on smaller apps available for a multitude of app devices. Windows is so badly designed, it cannot compete in this space without a complete rewrite using a UNIX core model. So, this should kill the last two Microsoft cash cows, Windows and MS Office. Even xbox will not help act as a gateway to new revenue streams because it is just another large code platform which will be replaced by smaller apps. Just look at the large game makers like Take Two, Epic, and EA moving to the app model.

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This fails on another point as well. Google Analytics
Authored by: jvillain on Monday, September 06 2010 @ 04:04 AM EDT
Google makes a suite of programs designed to help you analise your web traffic
and improve your rankings and there for hit count called Google Analytics. Kind
of hard to say Google has their thumb on the scale when they are providing tools
that allow you to improve your search rankings yourself. There are people who
specialize in tweaking sites to improve your rankings. If you didn't hire some
one with those skills is that Google's fault?

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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google
Authored by: JCA on Monday, September 06 2010 @ 07:07 AM EDT
I do not know ("IANAL") whether Google is doing anything wrong
concerning paid advertisements, but to be found among the top 20 in a search
without paying Google is not very difficult. Our company website long ranked as
number 1 of 62 million pages with Google on one particular search item, among
the top 5 out of millions on other search terms. Just before summer this year I
helped a company to become visible on Google, just 2 weeks after update of their
web-pages, they ranked number 14 out of 14 million on Google. Secret to
success: Study the Google patents (this is public info), study the Google top
scoring pages (also public info), and write good text.
What a "monopoly"! And,BTW, Bing is in my opinion very inferior to

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Any evidence of Microsoft monopolistic and anti-competitive practices?
Authored by: TiddlyPom on Monday, September 06 2010 @ 07:33 AM EDT
As a UK citizen, it seems amazing that after so many years of establishing a near monopoly of their operating systems and office suites on (relatively) open PC hardware that Microsoft have not been successfully prosecuted.

If one of the major telephony carriers (such as AT&T) became such a near monopoly, there would be an outcry. In the UK, this resulted in the opening up of British Telecom's monopoly and competition using their infrastructure. Something needs to be done to break Microsoft's stranglehold on Personal Computers and allow competition to flourish.

How can anyone not see that pre-loading Microsoft operating systems on PCs is enforcing a monopoly?

How anyone could think that offering a choice of browsers helps at all?
It is a bit like saying that everyone HAS to buy Ford Cars but they (Ford) will allow you to choose which radio is installed!

How many shops which sell PCs offer another choice other than Windows?
Virtually none - and Macs don't count as they are (in effect) a turn-key system with locked software/hardware. Now if Apple offered OS/X for use on any PC, that would be different but of course they won't.

So why don't shops have PCs pre-loaded with Linux (and by that I mean a well known, easy to use distribution like Ubuntu, Fedora, Mandriva etc rather than Linpus which is very restricted) as well as pre-loaded with Windows so that customers can make up their own minds? The answer is that Microsoft enforces their monopoly by reducing discounts (aka increasing prices) to shops that offer alternatives - i.e. anti-competitive/monopolistic practices.

That HAS to be illegal both in the UK and the USA! I have written letters myself to my own MP and to the Office of Fair Trading in the UK but was told that nobody considered the current situation to be a monopoly!

What utter garbage!

Does Microsoft have some sort of political hold over our governments so that the current situation is being allowed to continue?

So to put this in context, Microsoft is funding competitors to sue Google for anti-competitive practice whilst they (Microsoft) are openly breaking the rules (or so it seems to me)?

Hey IBM, Google, Red Hat, Canonical, Intel, Montevista and others who depend upon Linux for their livelyhood, how about a competitive advert in Times Square about Microsoft anti-competitive practices and perhaps then the attacks on Open Source users (such as HTC and Google) might die down a bit...

Note that the opinions in this post are my own BUT there is an increasing body of evidence to support them.

Microsoft Software is expensive, bloated, bug-ridden and unnecessary.
Use Open Source Software instead.

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"No one gave Google a leg up....."
Authored by: Anonymous on Monday, September 06 2010 @ 08:13 AM EDT
True. It is quite remarkable how quickly Google grew. Before that, I was using AltaVista as my search engine. But I can't even remember how I came to know about Google.

There must be a lesson there in how to market a new product successfully, yet unobtrusively, without spending money that you don't yet have. I feel that Google's success has provoked a typical tantrum in those who nearly missed the web, and never saw the revenue-generating potential of a search engine (Gates etc), just as the success of Linux provoked McBride, and these types of legal case are short on fact, or legal merit, but basically just a mixture of pride and spite.

tiger99, just back from holiday an not logged in on this machine yet

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A caution about Google
Authored by: Anonymous on Monday, September 06 2010 @ 10:36 AM EDT
I've recently had the opportunity to look inside Google a little and in my
opinion the are beginning to show elements of anti-competitive behaviour.
Nothing like Microsoft, but still...

Folks need to remember this is a very large (100,000 person) company with only
one viable business model: search-based advertising. That business provides
something like 95% of their revenue. Everything else they do or have done
either looses money or produces minuscule revenue. Anything that threatens that
business will stimulate an immediate protective response.

Most of the "c" level folks I've met at Google admire Microsoft. I
can't claim that I've met a representative sample, though. Many of these people
have been hired in the last couple of years. It would be a mistake to think the
Google of years past is the Google of today. Many and maybe most of the ICs
still believe in open things, so Google is certainly not monolithic in this
regard. Still, if the only alternative was between paycheck or openness, I
wonder which would win?

I know people here will attack me for this position but I think it is important
not to paint Google with a halo, but just to understand the incentives behind
corporate behaviour.

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Are we watching the implosion of the American COTS SW industry?
Authored by: Anonymous on Monday, September 06 2010 @ 10:39 AM EDT
By definition, one cannot predict paradigm shifts in advance.

So, we are left to observe and wait.

With the global economy in neutral and successful companies
hoarding cash, is it only natural for the unscrupulous to
go after other people's cash hoards? These companies cannot
grow their market. There are few M&A candidates left. The
big companies will not hire any time soon. Most established
products and services will be obsolete when the economy
rebounds. New products and services will take over when
demand appears. Creative destruction.

Money is burning a whole in their pocket. So, they go on
the offensive. Maybe they will cripple each other...while
making the lawyers richer.

My sense is that Groklaw is documenting the setting PC era,
dominated by Microsoft's greed and fear.

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Are We All Missing Something Obvious?
Authored by: sproggit on Monday, September 06 2010 @ 04:18 PM EDT
My apologies if this point has already been made before. I looked but didn't see

PJ's analysis shows that if not Microsoft [indirectly] then an *awful lot* of
people and companies involved with Microsoft in anti-trust activities appear to
be participating in this action *against* Google. The general consensus appears
to be "Google has 85% share of internet search and that's a monopoly, so
it's an anti-trust issue."

I just wanted to point out that Microsoft have roughly the same percentage of
monopoly on desktop operating systems. So of course Microsoft would be willing
to subject themselves to the same rules and the same remedies, right?

Oh, while we're on this track... Given that the vast majority of new PCs come
with Microsoft OS pre-loaded - and "unlockable" versions of Office
suites to boot... how can one *possibly* begin to compare the
"Microsoft" monopoly with the "Google" 'monopoly'? After
all, if I don't want to use Google's search engine, all I have to do is change
my browser to point to

I don't have to rebuild my PC to purge it of bloated, unwanted malware like

With search engines, the ability to "choose" an alternative to Google
requires nothing more than a URL change. With Operating Systems, it's a little
bit more complicated.

Or, as we say where I come from: pot, meet kettle.

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Can phones use peripherals?
Authored by: Anonymous on Monday, September 06 2010 @ 04:25 PM EDT
I'm not into portable stuff yet, and everyone seems to be writing off the
desktop as a dinosaur. But can phones actually replace the desktop everywhere,
rather than merely become an important adjunct? Can I throw out my desktop and
get the same functionality with a phone or tablet? And I really do like my large
desktop screen.

Can you use peripherals like printers and scanners from a phone? I know you can
send pictures directly from a phone, email and text. But there's some pretty
heavy-duty stuff that, it seems, to me, you still need a desktop for.

At the moment, I'm not ready to junk my desktop, Linux, Mac or Windows.

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This is silly
Authored by: barbacana on Monday, September 06 2010 @ 05:09 PM EDT

So. A crusade to destroy Google.

That's one of the silliest things I've read on Groklaw. Google, by now, is indestructible for the foreseeable future, and that must be as obvious to Microsoft strategists as to everyone else.

It's likely that Microsoft would want to see Google's expansion restrained. But anyone who reasons that because Microsoft is Bad, and Microsoft is attacking Google, then Google must be Good, is making an elementary logic error.

Whether Google is just as evil as Microsoft may be open to debate, but I think it's a pointless debate. Both companies are evil. They were almost bound to fall out with each other eventually - they can't both own the Internet.

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Authored by: PM on Monday, September 06 2010 @ 07:51 PM EDT
This is the most silly thing out of Texas since the 'food slander' case against
Oprah. See:

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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google - Updated 2Xs
Authored by: Anonymous on Monday, September 06 2010 @ 10:58 PM EDT

Hasn't Google pushed regulators to investigate Microsoft in the past? I seem to recall they had a hand in pushing for some of the EU actions against Microsoft, for instance.

I don't see why that should be OK, but it should not be OK for Microsoft to return the favor.

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I can't help but think about Yahoo
Authored by: Anonymous on Tuesday, September 07 2010 @ 01:05 AM EDT
I remember an article about this not too long ago, thinking it was in News Picks. I couldn't remember exactly when Google overtook Yahoo in search, a quick Google reveals its only been 2 years ago! That's hard to believe as I for the most part abandon Yahoo well before that.

At one time I was an avid Yahoo user, Yahoo Mail, Yahoo Messenger, I even used Yahoo's toolbar (for IE) as I was running Windows 98 at the time and it offered a pop-up blocker that was lacking in IE 5, or 6.

As was stated in the article, it's as though Yahoo stopped caring. If I recall correctly, the first annoyance, was Yahoo yanking the right to use an email client. Then it was as though work on the spam filters halted. Then spam starting in Yahoo Messenger. Yahoo kept redesigning its homepage, making it more and more cluttered. I did keep Yahoo search for a while, using (which I think was a last-ditch effort to compete with Google). There for a while to I was getting links to many dead sites.

Google is like a breath of fresh air. I can use an email client, to get my email through Gmail. What a concept! I have yet to see another free service allow me to do that. That is a prime example of putting user experience first. The search results are relevant and useful. While I do have some reservations about Google docs, I have used it from time-to-time and appreciate it being there. Unlike Office Live, I don't have to be running Windows and install additional software to use it. Google Voice allowing text messages to be sent to cellphones has been a God-send for me.

Quite frankly, Yahoo should have seen the writing on the wall and everyone wanting to compete needs to learn from Google.

Oh and just for reference: ite-497

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Just for fun, I searched
Authored by: Anonymous on Tuesday, September 07 2010 @ 03:22 AM EDT
Just for fun, I searched, using their
embedded search screen.

Using the term "Google"
I got 594 links, all top 40 seemed to to be about Google.
I stopped checking at that point.

Then I used "Microsoft" as the search term.
I got 194 hits, the top 20 were all about Google as well.

Apparently, Consumer Watchdog has no negative complaints or
much comment about the largest software vendor in the world,
maker of the problem prone Xbox. And no stories about the
second largest search provider, Bing/Yahoo. But plenty to
say about the largest search provider.

What are your results?

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Government control of the web?
Authored by: Anonymous on Tuesday, September 07 2010 @ 04:10 AM EDT
"And let me ask you something: do you really want the government to run
search engines so it gets to decide what results you get to see? Are you out of
your cotton-pickin' mind?"

In Australia, we have just had announced this afternoon EAST, that two
independent MPs (Congressmen/Commoners according to your locality) have just
handed the previous government limited permission to form a new government after
the closest election in memory.

This may mean the resurrection of the Government Internet Filter, also known as
the Great Ozzie Firewall, whereby the government nanny gets to decide which web
pages we are allowed to see. This will probably slow down our access and
therefore we will also be getting over the next 8-10 years a government-provided
FTTH national broadband network supposedly "running" at 100Mbps
(meaning maximum data transfer rate, I suspect). The price tag? A mere $A43
Billion (ten times our largest completed infrastructure project), but don't go
looking for a cost-benefit analysis, because there isn't one.

So you may want to watch the Down-Under experiment in national internet
insanity, which could rival SCO...

John Angelico
Down Under OS/2 Zealot
(Don't understand why I'm not logged in)

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There is no Google monopoly
Authored by: TiddlyPom on Tuesday, September 07 2010 @ 04:18 AM EDT
There are loads of different search engines e.g. and plenty of others as well. Whether I am running
  • Microsoft Windows
  • Apple OS/X
  • Linux (whichever distribution)
  • Solaris
  • Open/Free BSD Unix
I can choose whichever search engine I require. The decision to use Google is purely a personal one but tends to be used by many people as they come up with the results.
The same is true for web analytics - there are a number of other companies such as Unica and RedEye who supply web analytics services.

The same goes for their operating systems (Android and ChromeOS) and email facilities. They do not have the same overbearing monopoly that Microsoft does. This is purely Microsoft hassling competitors which ironically is an anti-competitive practice!

Microsoft Software is expensive, bloated, bug-ridden and unnecessary.
Use Open Source Software instead.

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Some things MS needs to think about
Authored by: Anonymous on Tuesday, September 07 2010 @ 05:56 AM EDT
1. MS can't really bellyache about Google exercising control over its search
results to improve their relevance to users when they were only recently running
TV adverts for Bing touting it as having a smaller number of more relevant
search results. That's called hypocrisy and people will point an laugh. Hiding
behind proxies isn't going to fool anybody either.

2. MS should remember how they themselves walked away from the anti-trust
lawsuits against them with barely a mark on them <i>when there was
substantial evidence of wrongdoing</i>. Prosecuting for anti-trust
violations is a massive uphill struggle even when one has substantial evidence.
What do they really think their chances are going to be with this thin gruel? If
they do not expect to prevail in court, and this is just a nuisance suit, then
do they really expect it to even slow Google down to any real extent?

3. If MS insist on going off half-cocked on a fool's mission they should at
least know not to call it a "Crusade". Doing that shows that they have
either no knowledge of world history or no sense of irony at all. It is also a
term that could come back to haunt them in their Middle Eastern markets.

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Most of our readers come from word-of-mouth.
Authored by: Anonymous on Tuesday, September 07 2010 @ 08:26 AM EDT
Actually, I found Groklaw as a link in a Yahoo! news story
years ago. Not to
downplay word of mouth, but it's hard to
find a linux-related legal article
without Groklaw being
mentioned (and linked to) somewhere in the article.

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A Peek at Google
Authored by: Anonymous on Tuesday, September 07 2010 @ 01:05 PM EDT

From the document that PJ refers to:

One example of Google’s strategy: Under the terms of its standard customer agreement, anyone who advertises with Google must agree to litigate any claims in the company’s Silicon Valley home base. “Small companies are effectively put out of business by Google,” says Rule’s colleague Jonathan Kanter. “Litigating in Google’s backyard is more burden than they can bear.”

Google plays the same game against its own employees. Every employee has to sign a non-disclosure agreement as a condition of employment - and on that form, they must agree that any litigation will take place in California. Not only is the expense of litigating in California way beyond the means of employees who don't already live there, but many of Google's overseas employees don't even have a visa to enter the USA. The agreement might as well say: "In the event of any dispute, Google wins, employee loses."

There's been some discussion of whether Google or Microsoft is the more evil company. To read PJ, you'd think Google was some kind of knight in shining armor. Well, in my opinion, it's a tossup which company is more evil. Microsoft has done more damage in the past. Probably it's doing more damage overall in the world today. But what kind of company would treat its own employees like Google is doing? If and when Google gets the kind of monopoly power that Microsoft has, we better watch out. We'll probably find out what "evil" really means.

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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google - Updated 2Xs
Authored by: Gringo on Tuesday, September 07 2010 @ 01:36 PM EDT
This well-researched and articulated article could be considered a sequel to Wired's seminal article "The Plot to Kill Google" from January 2009 (By Nicholas Thompson And Fred Vogelstein). The Wired article documents Microsoft's massive campaign that led up to Google abandoning the Yahoo deal in the face of threats under Section Two of the Sherman Antitrust Act, which criminalizes monopolies...

Google's capitulation marked a rare defeat for the search giant, ...and it was cause for celebration in Redmond, where Microsoft spent six months on a massive effort, costing millions of dollars, to block the Yahoo deal. Microsoft played a role in persuading members of Congress to hold hearings. It initiated a campaign that filled DOJ mailboxes with letters from politicians and nonprofit groups objecting to the deal. It convinced the country's largest advertisers to join together to oppose the company in public. It's impossible to know exactly what impact all this had on the DOJ decision. But many observers believe that [Tom] Barnett, [assistant attorney general for antitrust] ... was influenced in part by Microsoft's arguments.

Clearly Microsoft's psy-ops teams have been hard at work to destroy Google ever since, as evidenced by some of their comments right here on Groklaw. I would urge anybody who has any doubts about the veracity of PJ's article to carefully read the Wired piece before coming to a final conclusion. PJ ads an important dimension to the subject when she poses the issue of Microsoft using the government to attack their competition...

Is this perhaps more abuse of the legal and administrative systems for anticompetitive purposes?

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Enough of this crap. When does Google go on the offensive?
Authored by: Anonymous on Tuesday, September 07 2010 @ 03:21 PM EDT
Google has the money to buy some decent lawyers of their own.

How long before they start taking potshots at Microsoft?

I mean it's not like Microsoft is squeaky clean.

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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google - Updated 2Xs
Authored by: JCA on Tuesday, September 07 2010 @ 04:33 PM EDT
Patent infringement seems to be a hot topic, what about this: A patent
establishes lawfully a (time limited) 100% monopoly. A dominating market share
established out of own force (without buyout of competition) does establish an
unlawful monopoly (even if it covers less than 100%).
Oops, there must be something I am missing!

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Where an anti-trust suit should be sent
Authored by: chris hill on Tuesday, September 07 2010 @ 05:47 PM EDT
I agree that there seems to be evidence, although not conclusive, that Microsoft is behind this, but this is not where another anti-trust suit should go until later.

Where the suite should go to first is where they will get documents to show where the money and other bits come from.

Yes, it may take a while, but Microsoft could be forced to release Bing and all rights to use it if done right.

The first thing to do is go after Kanter is quoted as saying: “The question isn’t whether Google is the next Microsoft,” said Kanter, who has worked closely with Rule for a decade on Microsoft and other cases. “The question is whether Google is the next monopolist.”

Like it or not, this shows that Kanter is, in fact, using the courts, and anti-trust legislation to compete. In fact, it can be said that this type of competition that Kanter is engaged in is in fact a business practice that results in a restraint of trade or commerce between states and and foreign countries and territories.

The second groups should be the American Antitrust Institute, which, in the auspices of it's president, is quoted as saying: "The markets are changing rapidly," said Albert Foer, president of the American Antitrust Institute in Washington, D.C., which has called on regulators to keep an especially close eye on emerging technologies like mobile advertising networks. "You certainly have to watch these guys like a hawk, figure out where they're going and figure out what each move means strategically and whether it will be (anti-competitive) in the future."

This in itself is a statement where the group is involved in an antitrust action of their own by offering a conspiracy to engage in speculative legal action to prevent a group from becoming a monopoly, thus is restricting trade and commerce across a broad spectrum.

This then leads to a suit to the antitrust lawyer, Rick Rule of Cadwalader, Wickersham & Taft, who has stated, on record, “Microsoft is not involved,” he said, “our clients are only the named plaintiffs.”

By saying this, Mr. Rule has implied there are unnamed plaintiffs, meaning that his records will need to be examined to see if his firm is involved in a conspiracy action, which is an antitrust violation.

From there, with documents in hand, unless they have been destroyed, you can go after the others, and lead up the line to the mastermind, which may or may not be Microsoft.

At least that is what I think.

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Has Anyone actually READ the Texas AG website?
Authored by: wolfear on Tuesday, September 07 2010 @ 07:57 PM EDT
I normally just lurk and soak my mind in all the wonderful information to be found on Groklaw, however, as this is my home state it immediately caught my attention.
After reading not only Groklaw comments but comments on several other sites, people seem to be under the impression that the AG instigated this investigation autonomously and that the above name entities happened to be included.

The Antitrust section of the website is here.
Read thru the site.
The TAG does not spontaneaously begin an investigation. It must have received a complaint first.

If you look at the information about filing a complaint found here, you will notice a very interesting section.
We can file suit only to protect the public interest. State law prohibits our office from filing a lawsuit whose only purpose is to recover money or property for a single person. In those instances, it is appropriate for the consumer to seek legal advice from a private attorney, legal aid society or other organization.
Our office does file suit against companies that violate the laws protecting consumers. However, we file these lawsuits to protect the public interest, not private interests. Whether a lawsuit is in the public interest depends on several factors:

* Severity of the case in terms of economic loss or the number and gravity of law violations
* Possibility of halting a fraudulent scheme quickly
* Extent to which consumers will benefit from public enforcement
* Costs of enforcement as compared to the benefits to the public
* Likelihood of collecting penalties and restitution from the business

Additionally, it also states it may or may not investigate a complaint and nowhere does it state that an investation is equivalent to actually filing charges.
Personally, I agree totally with the majority that this is just another bogus M$-backed strategem.
Side note: My hat is off to PJ and all those who work so diligently. Groklaw and those who contribute are making a difference, one "myth bust" at a time
I shall go back to lurking now

Good judgement comes from experience, most of which comes from bad judgement.

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re: Update 3
Authored by: caecer on Tuesday, September 07 2010 @ 10:27 PM EDT
Maybe it is worth pointing out in Update 3 that the basic PageRank algorithm is not secret (although the multiple modifications and tweaks probably are). You can easily get to the "secret" by clicking first on PJ's "Google's blog post", then on the link "how our ranking works", then on the link "here it is". Section 2.1.1 of that paper gives a formula and succinct definition. Of course nowadays the web contains rather more than the 26 million pages discussed then, so the actual calculation requires a bit more than "a few hours on a medium size workstation".

See also the Wikipedia article for a correction to the formula given in the original paper.

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I just Binged
Authored by: Ian Al on Wednesday, September 08 2010 @ 03:43 AM EDT
I put in 'computer' to start and I began to think I had used the wrong search
engine. It has sponsored links at the top and to the right hand side. It looks
very like Google and not at all like the old engines I used to use. Both Google
and Bing put the Wikipedia entry for 'computer' high up on the first results
page and I thought that was a good thing.

Now that I could see that Bing provides a user-interface that I understand, just
like my preferred search engine choice, I tried a serious search engine test: I
searched (in the UK) for 'search engine'. It was like a blast from the past with
a lot of search sites I had almost forgotten. There were lots of other links to
advisory groups, magazine articles and other more obscure results as well as
links to companies selling computer equipment, services and magazines.

I am up to page 15 of the test results and have yet to find the three results I
expected; Foundem, SourceTool, and

I suspect that these three companies are incompetent in providing the data on
their web pages that enable other search engines to bot what they do or that
they do not provide a service that users find valuable.

Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

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Search engine ranking
Authored by: jpvlsmv on Wednesday, September 08 2010 @ 09:36 AM EDT
So as a meta-test of how Google ranks competitors, check out the results at ?q=search+engine
At least at the time of my search, they come as Dogpile, Altavista, Bing, the wikipedia article on web search,, and then finally Google promoting its own custom search engine for individual sites.
Surely if Google were discriminating against competitors, would be right at the top of their own rankings, wouldn't it? In fact, google itself isn't in the top 10 pages of its own rankings.

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A Peek Behind the Curtain of the Texas Antitrust Complaints against Google - Updated 3Xs
Authored by: greybeard on Wednesday, September 08 2010 @ 10:47 AM EDT
Probably a dandy time to comb through the campaign contributions in various
Texas elections. Our beloved AG is not known for his concern for anyone other
than the richest and most powerful and this pathetic trio is neither.


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Is there a legal term for "no duh"?
Authored by: BitOBear on Saturday, September 11 2010 @ 01:01 AM EDT
So google, a search engine, is designed so that their searches lead to results,
as opposed to other search engines...?

I know that _I_ would never prefer a search service that predominantly lead to
another search service as that way lies madness. Like looking up "car"
and finding a single listing that says "See Automobile". Who wants
that? In such a world, every entry found while searching on a dating site would
be a recommendation for other dating sites and nobody would ever get a date.

Now I know this is about the _advertising_ on the search results page as opposed
to the actual search results. It is, however, the stated goal of the Google
advertising system, to sell advertisements in a venue where the advertisement
viewer is "seeing your ad when it is the most relevant to their search
term" (paraphrased).

So the searcher is promised that "it is worth looking at the ads because
they are as relevant as possible to your current search" as a way to lure
the searchers eye.

And the advertiser is promised that "it is worth buying the ads because
when searchers see the ads they will already be interested in your product so
you are likely to see results."

Given that this is the stated arrangement, and given that when I am looking for
ball bearings, I likely want ball bearings, not other means of looking for ball
bearings, how would it ever be a surprise that I would never want to see an
advertisement for search engine? If I were searching for "B2B sites about
ball bearings" the the advertisement would be relevant.

So as near as I can tell, the complaint being filed is "these Google people
are doing a good job at delivering on their promises to advertisers and
searchers and we cannot seem to subvert that".

If there is no such thing as "the 'no duh' defense" then this case is
evidence that there should be.

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