The ongoing lawsuit of Kinderstart v. Google may have come to an end today, as U.S. District Judge Jeremy Fogel granted Google's motion to dismiss the complaint. However, he granted "leave to amend," so Kinderstart may modify their complaint and try again.
The key consideration for Kinderstart may be found in Judge Fogel's deferment of consideration of Google's special motion to strike the first, eighth, and ninth claims of Kinderstart's complaint. Blogger and assistant law professor Eric Goldman suggests that "doing so raises the stakes on KinderStart's repleading," adding that he sees an implicit threat in the judge's decision, that "the judge will not pursue the anti-SLAPP sanctions if KinderStart drops those claims, but the sanctions will be back on the table if KinderStart continues to pursue those claims and ultimately loses."
Google has come away the clear victor thus far, even though the case is not yet completely closed. Kinderstart has essentially had the door shut — but not slammed — in its face. This dismissal adds to the growing number of cases which boost Google's claims that PageRank and other measures of how a website should rank are proprietary and that websites negatively affected by changes in their ranking are not being singled out in a personal or subjective way, but are simply being "penalized" based on objective measures that affect all similar sites equally.
Frankly, I don't believe Google's claim, based on personal experience, my technical background, and incidents in which sites with which I'm intimately familiar have been affected both positively and negatively by Google's re-ranking. It does seem that Google sometimes adds human interaction to the overall recipe, making the standard more subjective than their public claim.
Certainly Kinderstart claims this happened in their case, though I'm also skeptical of their assertion based on the time I've spent looking at the Kinderstart.com site. If they do manage to prove thier case, Judge Fogel has left the way open to hitting Google hard on this issue, but I'm unsure how Kinderstart can argue their way to victory.
Though I think that Datner v. Yahoo is a much weaker case overall, Datner does seem to be in a better position than Kinderstart in claiming that Yahoo intentionally and subjectively changed the ranking of their site, at least based on the information provided by Kinderstart so far.
Some suspect this case is less about Kinderstart regaining high ranking specifically and more about getting Google to open up and share the secrets of PageRank. It now seems clear that it's not going to happen. That may be one reason why I think Kinderstart will decline to amend their complaint, though the risk of being required to pay as the result of anti-SLAPP sanctions will also weigh heavily in their decision.
I think that Kinderstart should take the relatively graceful way out that Judge Fogel has provided them, but it remains to be seen if they'll see it the same way. If they really have proof that Google's ranking of their site is subjective and specific to their site instead of algorithmically derived, they may push ahead, but they'll have to convince the judge, and I'm certain Google's lawyers will make a strong case that Kinderstart is wrong.