115: Kinderstart: Wailing like a Baby

Stella Case No. 115, Originally Published: 17 January 2007

With hundreds of millions of web sites online these days, how do you find what you’re looking for? And how do you know if the sites you do find are any good at all? Word of mouth helps, but there has to be something better — and there is: search engines like Yahoo, Google, and Microsoft’s Live are the first place most people start when they look for something. And if they’re looking for something really specific, there are many hundreds of smaller, specialty search engines for everything from executive resumes to sites for kids.

KinderStart.com is one of those specialty search engines — it claims to be the “largest (and most popular) indexed directory and search engine focused on children zero to seven on the ’net.” (Let’s ignore the question of why a child of “zero” would need a search engine.)

Web sites tended to be pretty fugly in the olden days: this is KinderStart’s home page in late 2006 (via Internet Archive).

Launched in 2000, “the mission of our small but dedicated staff is to provide parents, grandparents, foster parents and teachers with the most organized, and easiest to use index and search engine available.”

OK, but then we run into the second question that online searchers often have: how to judge quality? One of many resources, on one of the multitude of generic search engines, is Google’s “PageRank”. Google says PageRank “relies on the uniquely democratic nature of the web by using its vast link structure as an indicator of an individual page’s value.”

Essentially, it’s Google’s mathematically derived “review” of the sites it indexes. (The only site I know of with a “perfect” PR — 10 — is Google itself; Yahoo, for instance, which is considered the most popular web site in the world, has a PR of 9. Brand new sites always start with a zero, and work their way up the ranks depending on how they fare with Google’s algorithms and, probably, human reviewers.)

But web surfers can’t really even see a site’s PR unless they have a Google Toolbar or similar tool installed in their browser. But even if surfers aren’t really aware of the PageRank of a site (or, really, particular pages on a site), the Rank affects how Google orders a site in searches.

If you did a search, for instance, for “Stella Awards” on Google, odds are you’d be shown the True Stella Awards’ site first, rather than (say) a site that published the urban legend case email that’s been going around for several years. How does Google know to show you the TSA site over the others? PageRank is part of that: TSA’s web site is a PR 7, and has a lot of links to it from other sites. That helps Google, as well as its users, to determine a site’s quality, and thus helps it decide which site is most likely to be of interest for someone searching for information on the Stella Awards — more or less instantly.

But KinderStart.com, the kid-friendly search engine, had a PR of zero even after it had been online awhile. In fact, they say, they had a better PR until Google suddenly dropped their rating to a zero in March 2005. And that, they allege, led to a reduction in the site’s traffic — by a “cataclysmic” 70 percent — which led to an 80 percent drop in the site’s revenues.

So in March 2006, KinderStart sued Google in U.S. District Court in San Jose, California, “on behalf of itself and all others similarly situated,” claiming that because Google’s PageRanking of its site was dropped to a zero rating “without warning”, that infringed on KinderStart’s Constitutional right to free speech.

Also, it alleged that Google was being anti-competitive in its actions, since “many of these Websites that are improperly and/or unlawfully severed from connection through the search engine, are in the very same competitive markets as Defendant.” It also claimed Google was violating the Sherman Anti-Trust Act, the Communications Act, was practicing unfair competition, “predatory” price discrimination, “Breach of the Implied Covenant of Good Faith and Fair Dealing”, defamation and libel, and “Negligent Interference with Prospective Economic Advantage”. Whew!

The suit demanded money, obviously, but more importantly it demanded that Google reveal how its PageRank is calculated — it wanted, in other words, the court to order Google to reveal the very trade secrets that make it the number-one search engine.

Google, of course, doesn’t want the PageRank algorithm to be revealed. If it became known how it works, and how it affects the ordering of search results, unscrupulous web site owners could game the system to their own advantage, thus destroying the quality of Google’s search results.

Google has a list of suggested “quality guidelines” to help webmasters improve their sites’ virtues, and thus their scores, but otherwise doesn’t say specifically how to improve the rank, and of course doesn’t tell sites why their rank is reduced for the same reasons. But it’s widely known among web site owners that trying to game the system can result in “de-ranking” — though it’s unclear if that’s why Kinderstart’s site was de-ranked, since Google isn’t saying.

Yet, Kinderstart’s class action lawsuit whined, “Google does not generally inform Web sites that they have been penalized nor does it explain in detail why the Web site was penalized.”

But aren’t such search engine site reviews — and the resulting rankings — protected as “free speech” themselves?

Of course they are.

Google never tried to force Kinderstart what to say, or not say, on its own web site, yet Kinderstart was trying to demand the right as to what Google should say on its web site. So exactly who is restricting free speech in this case?

Judge Jeremy Fogel clearly answered that question by dismissing all nine of Kinderstart’s claims against Google in July. He had previously rejected the idea of forcing Google to reveal its trade secrets. “You can’t just file a blanket lawsuit and say, ‘We think we’re going to find some stuff’,” he admonished.

Yet Kinderstart vowed to file an amended complaint and start over in September — which apparently didn’t happen.

Google has as much of a free speech right to state its opinion as anyone else. It’s particularly offensive for Kinderstart to try to get a court to force Google to alter its speech on “free speech” grounds.

And is Kinderstart really any sort of “competition” for Google? The suit was silent on why Google’s biggest competitor — Yahoo — would be ranked 9 if it was practicing discrimination. It’s hardly conceivable that Google would be worried about a tiny niche search engine, yet not be worried about its biggest competitor.

But even if Google was somehow discriminating, Kinderstart’s action is even more outrageous: it’s arguing that it’s Google’s responsibility to help its competition. If Kinderstart can’t compete on its own merits, why should a court step in to give it unfair advantage?

The case was dismissed just four months after it was filed — which is surely another measure of just how ridiculous the court thought its claims were.

Sources

  • “Kinderstart Sues Google over Lower Page Ranking”, Reuters, 18 March 2006.
  • “Rank Outsider Sues Google over Zero Score”, The Register, 3 July 2006.
  • “Order Granting Defendant’s Motion to Dismiss”, U.S. District Court order in Case Number C 06-2057 JF, 13 July 2006.
  • “Our Search: Google Technology”, Google Inc., undated (info on Google’s technology, including PageRank).

Case Status

Dismissed, as noted, but there’s some additional information in the next section. KinderStart was the first runner-up for the 2006 Stella Awards.

My 2022 Thoughts on the Case

Another indication of “just how ridiculous the court thought its claims were”: Google filed for “Rule 11” sanctions against KinderStart and its attorney, Gregory Yu, and U.S. District Court Judge Jeremy Fogel made a “not for publication” decision, which I got hold of.

Rule 11 in The Federal Rules of Civil Procedure allow for monetary or other sanctions against attorneys or their clients for harassment, frivolous arguments, or a lack of factual investigation.

For example, Yu charged — without providing evidence to the court to back it up — that Google sold better search results placements, which the company strenuously objected to. “The Court concludes that the allegations are sanctionable under Rule 11 because they are factually baseless and because Yu failed to perform an adequate investigation before filing them.”

Another allegation: “Google moves for Rule 11 sanctions on the basis of KinderStart’s claim that Google removes search entries and deflates PageRanks for political and religious reasons.” But, Judge Fogel replied, Yu’s “declaration provides no evidence of and makes no reference to political or religious discrimination” and, worse, “…KinderStart does not appear to allege that KinderStart itself suffered any discrimination by Google for political or religious reasons.”

Fogel said that “Yu had a professional responsibility to refrain from filing such allegations if he did not have appropriate supporting evidence,” but “the Court concludes that the challenged allegations are factually baseless with respect to KinderStart and that Yu conducted an insufficient investigation prior to alleging religious and political discrimination.”

Therefore, he ruled, “Google is entitled to reasonable compensation for having to defend against these claims. Accordingly, Google shall file a motion for attorney’s fees within fourteen (14) days of the issuance of this order identifying the fees associated with its motion for sanctions and with other motion practice related to the sanctionable allegations. The Court will determine the amount of monetary sanctions after receiving Google’s submission and Yu’s response.”

That’s quite a slap, not even counting that “the Court will deny KinderStart’s cross-motion for sanctions” — it had filed some Rule 11 complaints too. Judge Fogel had also rejected KinderStart’s attempt at making the dispute a class action case (“on behalf of itself and all others similarly situated”).

As for my current thoughts: I still think the company was incredibly whiney, which is not a terrific business strategy: KinderStart is long gone, and their domain name has been picked up by a Vietnamese company selling cell phone SIM cards. Heck, they don’t even have a Wikipedia page. I’d guess most well-known failed dotcoms — aka “dot-bombs” — do (e.g., pets.com).

PageRank isn’t such a big deal at Google anymore; their algorithms are now much more complex and take a lot of factors into account that PR never did. Things have changed massively in the search engine business since 2006!

Letters

This week’s letters relate to Case No. 113 (lady attacked by a squirrel at the mall):

Darin in Indiana: “I have to agree with the victim who was startled by the squirrel in the outdoor mall. My only reason for agreeing is that the mall employees were encouraging wildlife to roam in the mall by feeding them. The mall needs to advertise to the customers that they are creating an outdoor zoo by feeding the animals. By failing to advertise this fact submits customers to a situation that a reasonable person would not expect. For example, there are several outdoor malls in the US where employees do not feed the animals and, as a result, there is no wildlife problem there. (Note…I used the term wildlife ‘problem’). So, as a consumer, aggressive (or friendlier than usual) wildlife in an outdoor mall is not commonplace.”

Maybe, maybe not. First, the lawsuit alleges that mall employees feed the squirrels. Is that true? I don’t know. Second, I find it hard to believe that the typical mall squirrel is anywhere near hungry; I see kids tossing food to them all the time, yet there’s no epidemic of killer squirrel attacks in malls. Might, then, the current case be a weird aberration (which is not “reasonably foreseeable” by the mall), or an exaggeration? Maybe we’ll see …eventually.

Lee in Ohio: “I wonder if the defense used the argument that the squirrel was just doing what squirrels normally do that time of year: go out looking for nuts. And the squirrel found one.”

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2 Comments on “115: Kinderstart: Wailing like a Baby

  1. IMO, this case is a perfect example of an often overlooked subsection of frivolous lawsuits — how you can make a potentially valid claim completely ridiculous by stretching too far.

    I don’t think it’s a controversial thing to say that a sudden drop with no discernible explanation on a system like this is extremely suspicious, and certainly grounds for some level of action if the group doing the rating is refusing to give any information… But you have to focus on those facts, and not make wild claims.

    But you don’t need trade secrets to get the answer, so the moment Kinderstart started seeking that, any reasonable interpretation of their action goes out the window.

    However, Google didn’t need to divulge trade secret to give a reason for the sudden de-ranking, either, and staying silent on such things is, to put it lightly, extremely questionable.

    If Kinderstart had focused on the facts, not engaged in wild speculation, and not demanded information on trade secrets, they might have actually been able to argue a case. Would have been QUIIIIITE an uphill battle though.

    But I think they shot themselves in the foot EVEN HARDER by making it a class action. Making it a class action implies this was a deliberate, widespread act on Google’s behalf when it could have been an honest mistake that Google won’t own up to — Google’s been guilty of both at various times on various things over the years, but you don’t apply malice to things that can be explained by incompetence until you have actual evidence of malice.

    Reply

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