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Monday, September 10, 2007

Frivolous Aussie Keyword Lawsuit: An Abuse of the Human Faculty of Speech?

Litigants in anti-Google keyword cases such as this latest in Australia speak in one-sided "baby talk," acting for all the world like Google has set out to deceive and wrong them personally. I'd call it "food fight tactics," if I'd ever witnessed a food fight mostly involving applesauce, but I haven't.

This complainant blithely accuses Google of sneakily "selling off top spot" in spite of its reputation for ranking results based on relevance, not money. The sponsored results supposedly appear "in the same format" as search results. Car dealership Kloster Ford was "outraged" by its competitor's conduct... and hence, the ensuing lawsuit and brouhaha. Too bad for the complainants, but the outrage was not backed by, at least, brussels sprouts, or other food you can whip at someone, because applesauce thrown in anger is still applesauce. It was also not backed by facts or sound argumentation.

The overinflated sense of outrage and weak argumentation reminded me of my penchant for the helpful if opaque works of Jurgen Habermas, particularly his late work Between Facts and Norms. If the ideal for better understanding and progress in any problem-solving exercise is what Habermas might have called a "discursive situation," Habermas can argue that "communicative power" is merely pushy coercive power based on bluster and sometimes backed by money or illegitimate influence. "Real" power as embodied in the law (as it should be) would emanate from a discursive situation. Winning in a legitimate court case based on a proper weighing of facts and ethics as generally agreed in legal codes would be "legitimate power."

Luckily, Google wins most of these cases. Apparently, in many jurisdictions, "I was outraged" and blatantly manipulative descriptions of how Google "sells off top spot," are trumped by the more accurate argument that accurately describes the real workings of Google's advertising program, and the legitimate right of advertisers to buy space online.

At the entirely opposite end of the spectrum, I then read a nice piece by Mike Grehan in Larry Chase's WDFM newsletter that focuses heavily on trends in search and how Google Universal Search presents results to users based on search history or apparent intent. There is far from a single "list" of "most relevant" results in a given format. So kudos, Mike, for presenting deep-seated facts which lead us towards a "discursive situation" about search and ads, thus staying on Professor Habermas' good side. In an ideal society, the legal system would take account of such facts. Most modern legal systems attempt to do so, fortunately.

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