THE CASE FOR CONTINUING THE CASE AGAINST GOOGLE—AND REJECTING ITS DEMURRER REQUEST Note: This document is a point-by point response to Google's demurrer request and includes some additional comments on why this case is so important and should move forward. 1. Googe is not a Publisher and therefore does not have First Amendment protection. Google is a software company that generates lists of URLs in response to user queries. It is profit-oriented and biased in favor of its own properties and AdWords customers. Neither Wikipedia nor the Merriam-Webster dictionary views Google as a publisher. They do not use the word "publisher" to define or describe Google. Google is simply promoting the notion that it is a publisher in order to gain First Amendment protection from antitrust and other serious violations of business law. Google is also promoting an Orwellian use of language by metaphorically stretching the use of words. By Google's standard, Ace Hardware might call itself a publisher of toilet seats, monkey wrenches, ... to avoid consumer-rights laws. Here is the Wikipedia definition of a search engine: A web search engine is a software system that is designed to search for information on the World Wide Web. The search results are generally presented in a line of results often referred to as search engine results pages (SERPs). The information may be a mix of web pages, images, and other types of files.... Here is the Merriam Webster definition: computer software used to search data (as text or a database) for specified information; also : a site on the World Wide Web that uses such software to locate key words in other sites Neither Wikipedia nor Merriam-Webster refers to a search engine as a "publisher". Here is the Wikipedia definition of Publishing: Publishing includes the stages of the development, acquisition, copy editing, graphic design, production – ... Here is the Merriam Webster definition of Publishing: the business or profession of the commercial production and issuance of literature, information, musical scores or sometimes recordings, ... Does any of this sound like Google? Does either definition include software-automated URL-list generators? No! Google is trying to engage the court in a fantasy that only it, Google, believes in. 2. Regarding the Communications Decency Act (CDA), Google calls itself an "interactive computer service." This is a lot closer to what Google is. The user types in words of interest; Google's software returns a list of URLs that may or may not be of interest. There is nothing exotic about the basic process. What is exotic is the behind-the-scene manipulation of URL choices, which bears comparison to the slight of hand of an evil magician. Google does not, as it suggests, make "value judgments," as any real publisher would. Instead, Google makes economic calculations. Many, if not most, of the URLs returned are paid for and not the best choices for users (consumers); and of course such practice harms Google's competitors, who are made invisible. Top-notch competitors, such as CoastNews, Foundem, NexTag, yelp ... are routinely "disappeared" so they do not block the visibility of paid Google sites. Be sure, also, we are not talking about "editorial opinion" here, as Google suggests; we are talking about paid advertising and favoritism. By virtue of its monopoly status, Google plays the critical role of gatekeeper to the Internet and the World Wide Web; but, due to monetary conflict of interest, Google has played a dubious role. Google has proven to be a bad actor, much like a border patrol agent who takes bribes to let some in, keep others out. Google uses CDA section 230 (c) (2) to justify "disappearing", or making invisible, CoastNews. CDA says: any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; ... No one considers nudist-colony nudity "obscene, lewd, lascivious, or filthy." This is a Google invention and perpetuated by Google in "bad faith" to justify disappearing CoastNews so that Google can move in its own properties. But apparently Google did not read the complaint properly. Per Google's request, CoastNews did remove Google ad code from the nudist-colony page. That made no difference, however. On Google's appeal response, Google simply stated that it was denied and that there could be other, though unspecified, problems on CoastNews pages. Bottom line: We complied with the Google request. The demurrer/answer does not acknowledge that. There was in fact no cause for the permanent removal of CoastNews from Google search result URLs listings and for the non-delivery of ads. 3. Google's demurrer seems to be mostly a "boiler plate" response to the CoastNews complaint, which Google seems to have read in haste. The main trust of Google's argument is that it, Google, is immune from antitrust law and fair business practices. Google's shield is the claim that it is a publisher and has immunity to antitrust law via First Amendment rights; it then uses free speech as a tool of censorship. Changing hats to become a "service provider," Google then falsely applies the Communication Decency Act to do whatever it wants. We don't buy this argument and demand that Google be held accountable, as smaller business surely would be, for its bad behavior. 4. Google's answer says that the plaintiff does not find the content objectionable (nudist colony article). That is true—virtually no rational human being would—but this was not stated in the complaint. And since the "objectionable" material was removed, this was never an issue; it was simply used as an excuse by Google. However, for the record, Wikipedia makes clear that nudist-colony photos are not considered pornography. See What is not pornography: http://en.wikipedia.org/wiki/Pornography See also COMMONWEALTH v. John REX. Merriam-Webster defines pornography this way: the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement Nudist colonies are not about "sexual excitement," in fact one of the points made in Andrea Perkins insightful article. It appears that Google has a unique view on what is pornographic and what is not—based on who is paying the gatekeeper. Common sense says the same thing about pornography and nudist colonies. Thus it appears that Google has used this as an excuse to get CoastNews out of the way; even though, as stated, it is a non-issue, as CoastNews complied with Google's request. 5. The statement in the complaint about Google AdWords and AdSense is correct. The original contract makes this condition abundantly clear. Google has changed its written policy since then, but warnings are still out there from SEO engineers. 6. As with Foudem and others, we were disappeared. As with Foundem and others, we went from the top listing to the bottom (disappeared) while still being recognized as #1 on Bing and Yahoo. We had been #1 on Google for a number of years until restaurant properties became extremely valuable. Then, abracadabra, we don't exist. A child would understand the "magic" involved in this. 7. On the surface Google appears to be engaged in a holy war against certain words, such as "pregnancy" and "disease", but it appears to be a disingenuous holy war. In reality it appears to be an excuse to disappear some sites, as searches with keywords of "sex" and "disease" do turn return URLs of sites with Google ads. Example, mayoclinic.org, medicinenet.org ... The Google holy war on language and thought appears to be applied selectively. 8. The demurrer does not work here. We have many, many facts now on Google abuses and deceptions with solid documented evidence; and we will have many more by the time of the trial. 9. Aesthetic damage to CoastNews is extensive. It constitutes wanton damage to business property, akin in older times to torching the business offices of a competitor. We will demonstrate this as evidence. 10. Statement in demurrer that we sought better placement is misleading. We never sought better placement; we were always at or near the top. What we sought was fair placement. What we got was no placement, or placement so low as to be virtually invisible, so that lesser-quality Google properties could be moved into our previous position. 11. Google is not a publisher and does not deserve, as demurrer states, the status of the New York Times. It is a piece of software that generates lists of URLs; there is simply no comparison between a real publisher and Google. Google makes no fine editorial judgments, as do publishers, and it produces nothing other than lists; it has no content and it does not edit anything. Its only judgments are made by software programmed to give Google's paid properties an advantage over others. This is an abuse of monopoly power both to consumers by promoting lesser-quality websites over better ones and to smaller businesses by making them invisible. 12. The following statement made in the demurrer is simply absurd: The plaintiff's allegations highlight precisely the competition among opinions that the First Amendment aims to protect. Plaintiff's complaint with Google's opinion regarding the placement of ads on a website containing objectionable content does the same. Are we speaking English here? allegations highlight precisely the competition among opinions? I fear that a skilled interpreter will be required to extract the meaning from these two sentences. (Note: The First Amendment deals with freedom of speech and press, not with pseudo-publishers' desires to suppress these rights in the name of competition.) But wait! That won't be necessary, as there is no issue here; ad code was removed per Google's request. Attorneys need to read the complaint with care. We complied and there was no objectionable content of any sort, either before or after removal. 13. Google's contention that it is a publisher is simply preposterous; moreover, Google does not show "editorial judgment." It demonstrates quite the opposite—a lack of good judgment or even common sense. We are the publisher, not Google. Google is a notorious, world-wide thief of content. Some thieves go to jail; Google gets rich. Read "Foundem’s Google Story": http://www.searchneutrality.org/eu-launches-formal-investigation/foundem-google-story Google is software. Input is words of interest; output is a list of URLs that is manipulated to make Google money. Google is a dishonest gatekeeper who blocks access to many honest sites. 14. If Google wants to clean up pornography, why does't it  clean up its own? It is the largest pornography site in the world, which includes child pornography as well. Want to see a "hunk" having sex with a 12-year-old girl? Go to images.google.com or videos.google.com and enter "young naked girls". Google has been asked to remove its pornography numerous times but refuses. Google's hypocrisy is unprecedented. It is like Satan accusing the Virgin Mary of being an adulteress for having given birth to the Lord Jesus Christ. 15. The statement about the Communications Decency Act is irrelevant. The ad code was removed per Google's request. Notice that Google put back on the hat of an "internet service provider" in the related section of its demurrer. Google has misread the complaint. When the ad code was removed, Google still refused to reinstate ads, stating that there could be other, though unspecified, problems. How fair is that? Google is ending an 8+ year "partnership" for reasons it won't discuss. This is arbitrary and dictatorial, which may not be illegal in itself. But it is also deceitful, as the real motivation appears to be getting CoastNews out of the way so as to move in Google properties. If that is so—we intend to prove it—it is deceptive business practice. CDA 230 talks about action taken in "good faith"; clearly this action was taken in "bad faith". Note: CDA law specifies "good faith." Google clearly acted in "bad faith" in removing CoastNews. However, this is a mute point as CoastNews did comply and remove ad code from the page that world-class pornographer Google found objectionable. This is irrelevant in light of the fact that the ad code was removed, but it is interesting to speculate: If Google found material objectionable because it dealt with racial issues, would CDA allow them to remove it? Let us say an article on Dr. Martin Luther King? Would it be okay to remove it because Google finds African-Americans objectionable? Is there not some limit to the use of the phrase "otherwise objectionable" as stated in CDA 230? 16. Regarding the exclusivity claim (can't do business with anyone but Google), there was such a contract when I signed up; it is also well known that Google will lower a website's organic search rating if non-Google ads appear on pages with Google's ads. Google has simply rewritten the contract, which it claims the right to do any time. 17. Google claims we don't specify injury. Making a website invisible is a death sentence to a business. This is well known. Read Foundem's and yelp's stories of being disappeared. If customers don't know you exist, this is death to the business. Google knows this and uses its monopoly position as gatekeeper to the internet to either extract extravagant fees from website operators—Google says 32 % but the fees appear much larger—or make websites invisible. The injury from Google's behavior is obvious and it was specified in the complaint. It has done the same to Foundem, yelp, and others. Google has created an environment in which it is impossible for none other than Google to succeed. Google either economically stifles other businesses so they cannot grow, or it outright kills them. This is precisely what antitrust law is designed to prevent. 18. Google's attempt to get the case dismissed via demurrer is disingenuous. Google is attempting to shield itself from serious business-law violations by taking refuge in rights it does not have. Google's reasoning is clear: publishers can do anything they want, therefore Google is a publisher. Google is hiding behind laws that do not apply to it in order to commit antitrust abuse. As a pseudo publisher, Google is invoking free-speech, First Amendment rights to censure genuine publishers. 19. We have already compiled considerable evidence to prove our case. It can be viewed online here: Corroboration of Experts http://coastnews.com/google/experts_corroboration.html Additional Links http://coastnews.com/google/more-links.html The complaint can be viewed online here: THE CASE AGAINST GOOGLE http://coastnews.com/google/google-complaint-new-2.html And an enhanced version with links to prove assertions can be viewed here: THE CASE AGAINST GOOGLE (enhanced) http://coastnews.com/google/google-complaint-new-3.html It has links that prove assertions about ratings and Google's pornography sites. WARNING: Google's pornography sites are truly disgusting and filthy. We also plan to obtain depositions from key players from Google along with industry experts. We may involve the Stanford Philosophy department as well, as they have shown considerable interest in the issue of search-engine abuse. 20. Finally, Google completely fails to address the third issue named in the complaint: The wanton destruction of business property by giving us only three days to remove ad code. Surely they knew what the result would be. 21. It is imperative that this case move forward to prevent further antitrust violations, to halt deceptive business practices, and to stop the destructive, we-can-do-anything-we-want behavior and attitude of behemoth Google. From seemingly innocent beginnings, the company has grown into a monster of greed that knows no boundaries.
	Prepared by Dr. S. Louis Martin