Mar 212011

Eric Goldman is an associate professor at the Santa Clara University School of Law and director of the school’s High Tech Law Institute. He was previously general counsel at in Brisbane. He has studied the issue of search engine bias, producing several academic papers on the topic, and said he sees no persuasive evidence that Google has acted unfairly.

(Goldman discloses that he earns a “meager” amount of money as an online publisher through Google’s AdSense product, and that he co-authored an amicus brief in support of Google’s legal position in a search advertising case. He has not acted as a paid attorney, consultant or expert for Google, and has been critical of the company’s practices in other areas.)

Q: Search bias has emerged as a central issue in Google antitrust inquiries. What’s your take on these allegations, based on your research?

A: There’s no question that every company would like to be first on Google for every search result, so by definition, anytime companies don’t get their preferred placement they’re unhappy about it.

We’ve seen a number of complaints from purported competitors who say “we should have been higher than we were.” That assumes there is a right number for their ranking that Google didn’t reach. I don’t find that credible.

There’s always going to be bias in data sets. The only question is what animated that bias. With Google, I haven’t seen any evidence that its bias reflects competitive malice.

When I evaluate the various studies on this issue, I always say, “Show me the problem.” Google is biased, but show me how that’s a problem. Be specific.

Q: A separate issue has emerged in recent years, as search engines like Google and Bing increasingly insert things like maps, videos and direct answers above or prominently within their results. These are forms of content that sometimes compete with organic search results. Does this pose a potential conflict of interest for companies that are primarily acting as online intermediaries?

A: You’ve defined away your problem when you call them “intermediaries.” One way of defining Google’s algorithmic search is to say: It’s supposed to get people somewhere else as fast as possible. Another is: It’s designed to answer people’s questions. The quicker they answer those questions, the better off we are. I think we’re struggling with which characterization is more accurate.

Google is a media property and, like all media properties, there are various ways of moving users across its services through cross-promotion, house ads and other things that The San Francisco Chronicle and other media properties do too. There’s nothing inherently wrong with its cross-promotion, unless the company has such dominance in one area that it can improve its competitive posture in these ancillary services. And we have difficulty putting the dots together to show Google has done that.

As a prime example of that, we’ve seen a number of Google services that have not been very successful in the marketplace. So Google merely turning the spotlight on its other services doesn’t guarantee its victory.

Q: For some of those services, Google pulls content from third-party sites, like business reviews. Even if there’s not an antitrust issue there, is there a potential fair use problem, insofar as it can undermine the economic value when users don’t click through to the original source?

A: We’ve seen a number of content providers express concerns about Google capturing and republishing their content. We’ve seen that with the newspaper industry, of course, and with other online intermediaries, like Yelp and TripAdvisor.

There may be intellectual property considerations there, but there can also be antitrust issues: that Google is using its dominant position to squeeze off people in implicit competition with it.

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