Kinderstart.Com, LLC v. Google, Inc.

Filing 16

MOTION for Preliminary Injunction Free Speech Violations filed by Kinderstart.Com, LLC. Motion Hearing set for 6/30/2006 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Attachments: # 1 Exhibit Ex 1 Lewis Declaration# 2 Exhibit Ex 2 - Goodman Declaration# 3 Exhibit Ex 3 - Yu Declaration# 4 Exhibit Ex 4 - McCarley Declaration# 5 Exhibit Ex 5 - Hoagland Declaration# 6 Exhibit Ex 6 - Purkiss Declaration# 7 Exhibit Ex 7 - Canady Declaration# 8 Exhibit Ex 8 - Blades Declaration)(Yu, Gregory) (Filed on 5/26/2006)

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Kinderstart.Com, LLC v. Google, Inc. Doc. 16 Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 1 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gregory J. Yu (State Bar No. 133955) GLOBAL LAW GROUP 2015 Pioneer Court, Suite P-1 San Mateo, CA 94403 Telephone: (650) 570-4140 Facsimile: (650) 570-4142 E-mail: glgroup [at] inreach [dot] com Attorney for Plaintiffs and Proposed Class and Subclasses UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION KINDERSTART.COM LLC, a California limited liability company, on behalf of itself and all others similarly situated, Plaintiffs, v. GOOGLE, INC., a Delaware corporation, Defendant. Case No. C 06-2057 JF NOTICE OF MOTION, MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AGAINST FURTHER FREE SPEECH VIOLATIONS Date: Time: Courtroom: Judge: June 30, 2006 9:00 a.m. No. 3, 5th Floor Hon. Jeremy Fogel NOTICE OF MOTION AND MOTION Plaintiff KinderStart.com LLC ("KSC") hereby moves this Court for a preliminary injunction, under Fed.R.Civ.P. Rule 65(a), to be heard at the above time and place. The Court is asked to enjoin Defendant Google, its officer, agents, employees, and attorneys, and all those in active concert or participation with the foregoing persons, to (A) affirmatively re-include Plaintiff KinderStart.com LLC's Website www.kinderstart.com ("KS.com") within Defendant's full-access search index, and (B) discontinue a practice to artificially or manually lower the PageRank ("derank") of KS.com, Plaintiff's Website, from an algorithmically generated number down to as low as `0', until a final hearing and determination of the merits in this action. This NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -1- Case No. C 06-2057 JF Dockets.Justia.com Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 2 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injunction, as may be ordered by this Court, will properly and equitably lay the foundation to secure and preserve the rights of, and suspend the ongoing harm to, the lead Plaintiff and all other similarly situated persons, companies and entities ("Class Members") (KSC and Class Members together are the "Class" or "Plaintiffs"). This preliminary injunction is sought because Defendant violates Plaintiffs' free speech rights under the First Amendment of the United States Constitution and under California Constitution Article 1, Section 2. Without this relief to both affirmatively and prohibitively enjoin Defendant Google, KSC and other Class Members will suffer immediate and irreparable injury, loss, and damage to their respective Websites, businesses, and freedoms, as more fully described in the First Amended Complaint on file herein (the "1st Complaint"), and in the affidavits and declarations of various parties, counsel and witnesses attached hereto.1 1 Prior to the issuance of the injunction sought herein, Plaintiff KSC is ready, willing, and able to execute a bond payable to Defendant, or to provide other security in such sum as this Court may deem proper for such costs and damages, if any, for an improperly granted injunction. However, Plaintiff requests that based on the equities, the type of injunctive relief against Defendant sought, and the nominal burden therefrom, this Court should properly not require an injunction bond of KSC for the duration of this case. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -2- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 3 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. VII. V. 2. 3. III. IV. II. I. TABLE OF CONTENTS INTRODUCTION AND FOUNDATION...........................................................................9 A. B. C. Relevant Facts..........................................................................................................9 This Court is Empowered to Hear and Grant this Motion for Injunctive Relief. ..12 The Grounds for Preliminary Injunctive Relief in the Ninth Circuit.....................12 FIRST ELEMENT: THE ONGOING BAN OF PLAINTIFF'S WEBSITE CAUSES IRREPARABLE HARM TO PLAINTIFF. .......................................................................13 SECOND ELEMENT: THE BALANCE OF HARDSHIPS EVEN IN THE MOST FAVORABLE LIGHT FOR DEFENDANT WARRANTS THIS INJUNCTION...........14 THIRD ELEMENT: THERE EXISTS A REASONABLE LIKELIHOOD THAT DEFENDANT COMMITTED FREE SPEECH VIOLATIONS.......................................15 A. The U.S. Supreme Court has Acknowledged that Public Forum Analysis Applies to the Internet .........................................................................................................17 1. Privately Owned Space or Property, When Dedicated for Public Use, Houses State Action...................................................................................25 State Action is Present because of Public Entwinement between Google and Government.........................................................................................28 Google Utilizes Search Engine Functionality, Indexes and Content Review to Restrict Free Speech. ................................................................36 FOURTH ELEMENT: THE PUBLIC INTEREST IS SERVED WHEN PLAINTIFF'S SITE IS RE-INDEXED, NATURALLY PAGERANKED, AND TRULY ACCESSIBLE ON THE WORLD WIDE WEB ........................................................................................44 AN INJUNCTION CAN ULTIMATELY LEAD TO REASONABLE NOTICE AND GUIDELINES FOR BANNING WEBSITES BY GOOGLE ...........................................46 CONCLUSION..................................................................................................................47 NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -3- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 4 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976)............................... 12 Allen, Allen, Allen & Allen v. Williams, 254 F.Supp.2d 614 (D.C.Va. 2003) ............................. 45 Altmann v. Television Signal Corp., 849 F. Supp. 1335 (N.D. Cal. 1994)................................... 47 Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968) ......................................................................................................................... 27 Arkansas Educ. Television Commission v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998)..................................................................................................................................... 17 Ashcroft v. ACLU, 542 U.S. 656, 661, 124 S. Ct. 2783. 159 L. Ed. 2d 690 (1998) ....................... 9 Bally Total Fitness Holding Corporation v. Faber, 29 F. Supp. 2d 1161, 1165 (C.D. Cal. 1998) ....................................................................................................................................................... 24 Bates v. State of Arizona, 433 U.S. 350, 380-81, 97 S. Ct. 269, 153 L. Ed. 2d 810 (1977) ......... 39 Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001) ...................................................................................................... 29 Brunette v. Humane Society, 294 F.3d 1205, 1213 (9th Cir. 2002), cert. denied, 537 U.S. 1112, 123 S. Ct. 902, 154 L. Ed. 2d 786 (2003) ..................................................................................... 34 City of Ladue v. Gilleo, 512 U.S. 43, 60, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994) (O'Connor, J., concurring).................................................................................................................................... 37 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982)............................................................................................................................................ 14 Compuserve, Inc. v. Cyber Promotion, Inc., 962 F.Supp. 1015 (E.D. Ohio 1997) ...................... 21 Cornelius v. NAACP, 473 U.S. 788, 800; 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)................... 19 Currier v. Potter, 379 F.3d 716, 727 (9th Cir. 2004) ................................................................... 19 Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp.436 (E.D. Pa. 1996) ................... 30 Dahl v. HEM Pharms. Corp. 7 F.3d 1399, 1404-05 (9th Cir. 1993) ............................................ 42 Denver Area Ed. Telecommunications Consortium Inc. v. FCC, 518 U.S. 727, 749, 135 L.Ed.2d 888, 116 S. Ct. 2374 (1996).......................................................................................................... 16 Dombrowski [v. Pfister], 380 U.S. 479, 486-87, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965) ........... 39 Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) ................................ 9 Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) .......................................................... 40 NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -4- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 5 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Faculty Rights Coalition v. Shahrokhi, 2005 U.S. Dist. LEXIS 16227 (S.D. Tex. Jul 13, 2005), recons. denied, 2005 U.S. Dist. 16293 (S.D. Tex Aug. 10, 2005) ............................................... 19 George v. Pacific CSC Work Furlough, 91 F.3d 1227, 1230 ( 9th Cir. 1990) (per curiam) ........ 31 Glendale Associates, Ltd., v. N.L.R.B., 347 F.3d 1145 (9th Cir. 2003)........................................ 43 Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal.4th 1013, 1025-31, 29 P.3d 797, 111 Cal.Rptr.2d 336 (2001) .......................................................................................... 43 Gresham v. Chambers, 501 F.2d 687, 691 (2nd Cir. 1974).......................................................... 13 Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2nd Cir. 1953) .......................... 13 Hollenbaugh v. Carnegie Free Library, of Connellsville, Pa., 545 F.2d 382, 283 (3rd Cir. 1976) ....................................................................................................................................................... 33 Horvath v. Westport Library Association, 362 F.3d 147 (2nd Cir. 2004) .................................... 33 Hudgens v. NLRB, 424 U.S. 507, 86 S. Ct. 1029, 47 L. Ed. 2d 196 (1975) ........................... 26, 27 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566, 115 S. Ct.2338, 132 L. Ed. 2d 487 (1995) .................................................................................... 41 International Jensen, Inc. v. Metrosound, U.S.A., Inc., 4 F.3d 819 (9th Cir. 1993)..................... 13 Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 769, 108 S. Ct. 2138, 100 L. Ed. 2d. 771 (1981)............................................................................................................................................ 40 Lee v. Katz, 276 F.3d 550 (9th Cir. 2002) .................................................................................... 30 Lloyd Corp. v. Tanner, 407 U.S. 551, 581-82, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) (majority; Marshall, J., dissenting ........................................................................................................... 22, 26 Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946) ....................................... 26 Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57, 104 S. Ct. 2839, 81 L. Ed. 2d. 786 (1984)..................................................................................................................................... 45 Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984) ...................................................................................................... 39 Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637 (9th Cir. 1993)....................... 13 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974)............................................................................................................................................ 41 N.Y. State Club Ass'n v. City of New York, 487 U.S. 1, 14, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988)............................................................................................................................................ 39 National A-1 Advertising, Inc. v. Network Solutions, Inc., 121 F.Supp.2d 156, 178 (D. NH 2000) ....................................................................................................................................................... 19 Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 8, 20-21, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (plurality opinion) ...................................................... 22, 40 NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -5- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 6 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Panavision International, L.P. v. Dennis Toeppen, Network Solutions, Inc., 141 F. 3d 1316, 1327 (9th Cir. 1998)............................................................................................................................... 20 Papachristou v. City of Jacksonville, 405 U.S. 156, 168, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972) ....................................................................................................................................................... 39 Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 851 (C.D. Ca. 2006) ........................................ 35 Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 48-49, 103 S. Ct. 949, 74 L. Ed. 2d 744 (1983)................................................................................................................................ 19 Prometheus Radio Project v. FCC, 373 F.2d 372, 448 (3rd Cir. 2004) ....................................... 22 Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980). 28 Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir. 2006) .................................................. 14 Red Lion Broadcasting, Co., Inc. v. FCC, 395 U.S. 367, 369, 400-01, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969)............................................................................................................................... 47 Reno v. ACLU, 929 F.Supp 824, 830-49, aff'd, 521 U.S. 844, 849, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)......................................................................................................................... passim Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, 908, 910, 153 Cal. Rptr. 854, 592 P.2d 341 (1979),........................................................................................................................................... 43 Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987) ............................ 13 Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S. Ct. 2510,132 L. Ed. 2d 700 (1995) ..................................................................................................................... 16 Rumsfeld v. Forum for Acad. and Inst. Rights, U.S. , 126 S. Ct. 1297, 1309, 164 L. Ed. 2d 156, 2006 U.S. LEXIS 2025 (2006) ............................................................................................. 41 San Diego Committee v. Governing Board, 790 F.2d 1471 (9th Cir. 1986) ................................ 13 Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994). .................................................. 13 TeleTech Customer Care Mgmt. (Cal.), Inc. v. Tele-Tech Co., 977 F.Supp. 1407, 1410 (CD Cal. 1997) ............................................................................................................................................. 21 Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 117 S. Ct. 1174 137 L. Ed. 2d 369 (1997)............................................................................................................................................ 47 United States v. American Library Association, Inc., 539 U.S. 194, 123 S. Ct. 2297, 156 L.Ed.2d 221 (2003)..................................................................................................................................... 32 United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484 (1965) ......................... 37 Viacom International, Inc. v. Federal Communications Commission, 828 F.Supp. 741, 744 (N.D.Cal. 1993)............................................................................................................................. 13 Virginia v. Hicks, 539 U.S. 113, 119, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003)....................... 39 Wickersham v. City of Columbia, MO, 371 F.Supp.2d 1061 (W.D. Mo. 2005)........................... 31 NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -6- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 7 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) .............................. 29 Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181, 1183 n.1 (N.D. Cal. 2001), rev'd 379 F.3d 1120 (9th Cir. 2004), vacated and reh'g granted 399 F.3d 1010 (9th 2005), rev'd and remanded 433 F.3d 1199 (9th Cir. 2006) .................................................. 16 STATUTES An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, 42 U.S.C. 1983 ............................................................................................................... 30 California Constitution Article 1, Section 2 ................................................................................... 2 Child Online Protection Act ("COPA"), 47 U.S.C. 23.............................................................. 22 Child Online Protection Act of 1998, 47 U.S.C. 230 .................................................................. 9 Children's Internet Protection Act ("CIPA"), 20 U.S.C. 9134(f); 47 U.S.C. 254(h)(6)......... 32 Communications Act, 47 U.S.C. 201 et seq. ........................................................................... 12 Communications Decency Act of 1996 ("CDA"), 42 U.S.C. 231............................................. 11 First Amendment to the U.S. Constitution ..................................................................................... 9 Sherman Act, 15 U.S.C. 1 et seq.............................................................................................. 12 OTHER AUTHORITIES "The Federal Government Information Environment of the 21st Century: Toward a Vision Statement and Plan of Action for Federal Depository Libraries," prepared by the Depository Library Council, Sept. 2005, at http://www.access.gpo.gov/su_docs/fdlp/pubs/dlc_vision_09_02_2005.pdf............................... 37 Balkin, Jack "Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society," 79 N.Y.U L. Rev. 1, 46 (2004)........................................................... 17 Gey, Steven G., "Reopening the Public Forum From Sidewalks to Cyberspace," ("Gey Forum Article"), 58 Ohio St. L. J. 1539, 1619 (1998) ......................................................... 16, 20, 24 n.14 Hafner, K. & Lyon, M, "Where Wizards Stay up Late: The Origins of the Internet," 103 36 (1996)............................................................................................................................................ 15 Kelly, K., "What Will Happen to Books", The New York Times Magazine, May 14, 2006, p. 42, 48................................................................................................................................................... 37 Newman, Nathan S., "Net Loss: The Political Economy of Community in the Age of the Internet", Ph.D. Dissertation in Sociology from UC-Berkeley 1998, ch. 2. at http://www.nathannewman.org/diss/index.html ........................................................................... 16 Note, "Neutral Rules of General Applicability: Incidental Burdens on Religion, Speech, and Property, 115 Harv. L. Rev. 1713 (Apr. 2002) ............................................................................. 40 Note, "The Impermeable Life: Unsolicited Communications in the Marketplace of Ideas," 118 Harv. L. Rev. 1314 (Feb. 2005) .................................................................................................... 22 NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -7- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 8 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Wall Street Journal, October 18, 2005 .................................................................................. 11 www.house.gov/international_relations/aphear.htm (109th Cong. 2d Sess., Feb. 15, 2006), p1 24 NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -8- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 9 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND FOUNDATION The First Amendment to the U.S. Constitution provides, "Congress shall make no law . . . abridging the freedom of speech." The U.S. Supreme Court has declared, "The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Accordingly, plaintiff KSC requests this Court to allow KS.com to freely and faithfully appear unblocked and PageRanked on the Internet through Google's search engine for the pendency of this action. In recognition of the monumental shift of dialogue and speech over to the Internet even in just the past five years, this Court should consider and grant injunctive relief in this vital public speech forum. Defendant Google's suspension of Plaintiff's speech over the Internet is a gravity of high importance and requires the utmost deliberation. A. Relevant Facts. The core function of Google's search engine is speech from millions of Websites on the Internet. There ancillary commercial purpose to present online advertising using sponsored links merely engenders even more speech, albeit as paid commercial speech. Since Defendant's entire business and technical platform is essentially speech, this motion centers on unhindered access to free speech. Naturally, the Internet has constitutional limitations in content, most notably, congressional and judicial efforts to protect certain harmful online content to minors.2 Plaintiff's site, KS.com was and remains a crucial resource on the Internet as an index and directory for and about all things children, ages 0 to 7.3 KS.com focuses on one of the most valued and crucial audiences in all of society those vested with the duty and privilege of raising and nurturing infants, toddlers and young kids into their pre-adolescent years. Like See Child Online Protection Act of 1998, 47 U.S.C. 230; Ashcroft v. ACLU, 542 U.S. 656, 661, 124 S. Ct. 2783. 159 L. Ed. 2d 690 (1998). 3 Plaintiffs ask this Court to take judicial notice of selected commentary about the value of content and links on the Internet through KS.com): Under the Yahoo! Parenting Web Directory, KS.com is ranked as the most popular site among nine sites listed. See http://dir.yahoo.com/Society_and_Culture/Families/Parenting/Web_Directories/, visited on May 4, 2006. For more evidence of the importance of KS.com to parents, schools and organizations, Plaintiffs refer to the accompanying Declaration of Sara Lewis ("Lewis Dec.") attached as Exhibit 1 hereto. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION 2 -9- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 10 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 millions of other U.S. organizations and businesses, KSC operates without a brick and mortar presence. The power of the Internet allows plaintiffs the open channel to reach millions in cyberspace. KS.com is seen and heard through the Web through search results, which constitutes the key gateway for almost any Web-based firm. The chronology demonstrates clear equities in Plaintiff's favor. In August 2000, over one year before Google became authorized to do business in this state, KSC launched KS.com with this announcement: KinderStart.com isn't for everybody, but it is for mothers, fathers, grandparents, siblings, expectant parents, teachers, health care practitioners, caregivers and anyone else interested in infants, toddlers, and children. KinderStart.com is the largest user-friendly index-directory of children's resources (prenatal to kinder-age) on the Internet. Over the ensuing five years, Plaintiff built out a robust research resource using a high six-figure internal investment to create vital, relevant categories for parents and caregivers of young children. In all, KS.com has about 1,600 categories and subcategories to present to visiting audiences. See Declaration of Victor Goodman ("Goodman Dec."), attached as Exhibit 2. Monthly during early 2005, an estimated 100,000 parents, teachers, educators, and caregivers would view perhaps 10,000,000 Web pages, all brought through the KS.com channel. [Goodman Dec. 4.] KS.com is not an e-commerce site where memberships, services or goods are offered and sold to the public. Nor does KS.com make any attempt to solicit personal information or data-mine such information. [Lewis Dec. 4.] The parties' relative resources are equally compelling in balancing the equities in KSC's favor. Defendant's purpose, function and mission is to index all Websites around the United States and world to afford access for search users actively seeking out published speech content, such as that available on KS.com. Defendant Google, as a publicly traded entity, has an estimated market capitalization of over $100 billion; KSC's investment of under $1 million is one ten-thousandth (1/10,000) of Google's market value. Google has over 6,000 employees; KinderStart.com LLC has two. [Goodman Dec. 3.] Google's 150,000 servers index upwards of 10 billion Web pages, of which an infinitesimal fraction is attributable to KS.com. Google perpetually promises to offer search users the most "relevant" results. Its Chief Executive NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -10- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 11 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Officer stated in The Wall Street Journal on October 18, 2005: "In order to guide users to the information they're looking for, we copy and index all the Web sites we find. If we didn't, a useful search engine would be impossible." (Emphasis added.) Defendant's swath in banishing a multitude of Websites, including KS.com, out of the index belies this public statement. One day in March 2005, Defendant Google incredulously determined that KS.com was no longer "relevant" on the Internet and removed from Google's index. No colorable reason or explanation of any sort was delivered or communicated from Defendant to Plaintiff. [Lewis Dec. 5.] Almost simultaneously, KS.com's PageRank was sent to the cellar at `0'. [Goodman Dec. 5.] Defendant never made any attempt to explain or revive that PageRank. Quite inexplicably, it rose to `7' after the filing of this class action. [Goodman Dec. 7.] At the hand of and with the devices of Defendant, Google employed one or more actors with full authority and direction and decided it was an opportune time to remove KS.com from Google's index. That happened instantly with the exercise of human will to the detriment of thousands of parents, teachers, caregivers and the like. [Id. 8.] The key word search of "kinderstart" produces nearly nonexistent search results on Google that list KSC's URL. For all practical intents and purposes, search users now have little means to even discover KS.com because, by Defendant counsel's own admission, KS.com, has been forcibly de-indexed by Defendant Google. [Declaration of Gregory J. Yu ("Yu Dec.") 3, attached as Exhibit 3] Google itself is trafficking in speech and communication and essentially does not generate its own speech on results pages.4 By serving as the driver of in excess of 60% of all Plaintiffs request this Court to take notice of Defendant's statements on an entry on the Google Blog of Andrew McGlaughlin, Senior Policy Counsel, on October 6, 2005: "As a search engine, Google crawls the Internet, gathering information everywhere we can find it. We're a neutral tool that allows users to find information posted by others like a continuously updated table of contents for the Internet. Not surprisingly, we don't believe the Internet works well if intermediaries and ISPs are held liable for things created by others but made searchable through us. That's why Google will continue to oppose efforts to force us to block or limit lawful speech." This reveals two truths: First, Google surely depends on treatment as an "intermediary" to insulate from liability caused by inappropriate content presented by other Websites through the search results. At the same token, Google vigorously defends its property right to "block and limit" other's lawful speech on search results. Second, even though it enjoys full immunity under the Communications Decency Act of 1996 ("CDA"), 42 U.S.C. 231 in delivering search results, Google does not hesitate to assume credit for such search results of Websites presented to the user and treat such ranked results as some form of synthesized speech or opinions of Google itself. This defies reason and fundamental fairness. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION 4 -11- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 12 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 search queries to the tune of 200 million searches executed per day, Google is truly a speech intermediary. [1st Complaint 66.] Rather ironically and conveniently, Defendant wants full command of free speech rights over the Internet to trump all other speech rights in this "public forum". [Defendant's Special Motion to Strike Pursuant to CCP 425.16, on file herein, III.C.] Those results are relevant and presented only if, when and because the native output and creativity of millions of other sites, such as KS.com, are indexed and objectively presented by Defendant Google. B. This Court is Empowered to Hear and Grant this Motion for Injunctive Relief. The 1st Complaint clearly lays out no less than three independent Federal causes of action. First, Plaintiffs allege that Defendant has abridged the fundamental First Amendment free speech rights of Plaintiff KSC and others similarly situated. [1st Complaint 104-05.] Google operates a freely available public forum, open to any and all with Internet access. It is an open 24-7 invitation to users all over the world to seek out Websites and their content. [1st Complaint 22-26.] Second, attempted monopolization and monopolization that violates the Sherman Act, 15 U.S.C. 1 et seq., is alleged. [1st Complaint 112-35.] Finally, Plaintiffs alleges that Google violated the Communications Act, 47 U.S.C. 201 et seq., in the role of a common carrier. [1st Complaint 136-44.] Further, venue is unqualifiedly proper in this judicial district. The Northern District of California, San Jose Division, is where the world headquarters of Defendant Google are situated. The various conduct and transactions amounting to federal law violations essentially occurred in this District. Therefore, this Court may entertain this motion for injunctive relief. In its motion to dismiss, Defendant has made no attempt to object to venue. C. The Grounds for Preliminary Injunctive Relief in the Ninth Circuit. A preliminary injunction should issue "upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Aguirre v. Chula Vista Sanitary NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -12- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 13 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Service, 542 F.2d 779, 781 (9th Cir. 1976) (emphasis in original), citing Gresham v. Chambers, 501 F.2d 687, 691 (2nd Cir. 1974). See also Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987). The Ninth Circuit has fully adopted the Gresham test. The Second Circuit originally articulated this secondary ground for a preliminary injunction that when "the balance of hardships tips decidedly toward plaintiff, . . . it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2nd Cir. 1953). The Ninth Circuit has soundly adopted this standard as well. See, e.g., Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637 (9th Cir. 1993); International Jensen, Inc. v. Metrosound, U.S.A., Inc., 4 F.3d 819 (9th Cir. 1993). Therefore, if the balance of hardships tips decidedly toward plaintiff and plaintiff has raised questions serious enough to require litigation, the injunction should issue. Where a mandatory injunction is requested by plaintiff, as in the instant case, the Ninth Circuit requires a heightened standard for such relief. The district court ordinarily would decline such relief unless "the facts and law clearly favor the moving party." Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994). II. FIRST ELEMENT: THE ONGOING BAN OF PLAINTIFF'S WEBSITE CAUSES IRREPARABLE HARM TO PLAINTIFF. In the Ninth Circuit, "a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable harm sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim." Viacom International, Inc. v. Federal Communications Commission, 828 F.Supp. 741, 744 (N.D.Cal. 1993) (citing San Diego Committee v. Governing Board, 790 F.2d 1471 (9th Cir. 1986)). As discussed in Section IV below, KSC's First Amendment claim is grounded in compelling facts that require application of public forum analysis to Internet search results. KSC's co-founder pointedly articulates the near total loss of Website information flowing through KS.com to multitudes of parents and caregivers. [Goodman Dec. 8-9] Google must be challenged to identify any patina of hardship or harm, whether financial NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -13- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 14 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or otherwise, in the event of injunctive relief to re-index KS.com or reboot its PageRank calculation. Further, the process of re-inclusion is fully an option at least in theory offered by Google to banned sites.5 This is not under any special algorithm or patented practice, to Plaintiff's knowledge. Indeed, Defendant at least seems capable of reindexing KS.com. [Yu Dec. 4.] Even if Defendant volunteered to cease the harm upon KS.com, this Court is empowered to enjoin Google from resuming the banishment of KS.com in the future. In the Ninth Circuit, "[i]t is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982)." Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir. 2006). Additionally, harm to the public of reindexing KS.com is equally nominal and even nonexistent. III. SECOND ELEMENT: THE BALANCE OF HARDSHIPS EVEN IN THE MOST FAVORABLE LIGHT FOR DEFENDANT WARRANTS THIS INJUNCTION The burden upon Plaintiff KSC is constant and ongoing because KS.com cannot be found on the Web anymore with basic search terms. Thousands of visitors and partners to this unique site are unable to locate KS.com with key words about children and parenting. This isolation has continued for over a year, and it damages the goodwill of Plaintiff KSC. That lost goodwill and traffic and blocked speech cannot be remedied with money. [Goodman Dec. 4-6.] As a corporate policy, Google undertakes little truly effective means to re-index banned Websites. [Declaration of Randall McCarley ("McCarley Dec."), attached as Exhibit 4, 3-4.] It is a meaningless and futile effort even for a technically-oriented Website designer. [Id. 4.] As for Defendant Google, there is almost a negligible effect to index or re-index KS.com on its 200,000-plus servers. If there are millions and millions of Websites searched, spidered and indexed periodically, the re-inclusion of a single site as KS.com cannot be measurably burdensome upon Google. Google is constantly indexing and adding new sites to its worldwide index. Likewise, a requirement to fairly and objectively assign a PageRank based on Plaintiff requests judicial notice of Google's public policy on re-inclusion of banned Websites, found at http://www.google.com/intl/en/webmasters/2a.html. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION 5 -14- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 15 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 links and traffic into KS.com would appear to pose only the most nominal technical challenge to Google. For this reason, the hardship upon Google for these very rudimentary steps cannot under any scenario come close to approaching the burden upon KSC for the past year. This injunction should therefore proceed. IV. THIRD ELEMENT: THERE EXISTS A REASONABLE LIKELIHOOD THAT DEFENDANT COMMITTED FREE SPEECH VIOLATIONS. This Court is now asked whether a dominant search engine as Google can intentionally or indiscriminately block and derank Websites of persons, businesses and organizations almost entirely dependent on search engine use, indexing and results. Constitutional jurisprudence and First Amendment protection for these millions of Websites rest on three core dimensions of the Internet its origin from government, its function today, and its value to democracy. First, the Internet itself was created by the federal government and developed through financing from the National Science Foundation.6 It began as a U.S. military program called "ARPANET", or the Advanced Research Project Agency, to enable computers of the military, defense contractors and universities to use redundancy over a network to communicate in wartime emergencies.7 Over the past 20 years, the government has ceded more authority, control and responsibility to private enterprises concerning the World Wide Web. One legal commentator traces the origins of the Web as follows: The reality is that the Internet is no accident but neither was it a technological inevitability. It was the product of a US federal government, in association with other nation's experts--in guiding its evolution, in demanding that its standards be open and in the public domain, and that its reach be extended broadly enough to overwhelm the proprietary corporate competitors. This network was the backbone that led to the eventual participation of private industry to build the communications infrastructure of the Internet. In a fundamental sense, companies and organizations became part of the World Wide Web; it is hard to imagine a single actor can or should dominate the Internet or a key component. 6 7 See generally, Hafner, K. & Lyon, M, "Where Wizards Stay up Late: The Origins of the Internet," 103 36 (1996). Finding 3 of 410 findings made by the District Court in Reno v. ACLU, 929 F.Supp 824, 830-49, as affirmed and adopted by the U.S. Supreme Court, 521 U.S. 844, 849, 117 S. Ct. 2329, 138 L .Ed. 2d 874 (1997) . NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -15- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 16 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Newman, Nathan S., "Net Loss: The Political Economy of Community in the Age of the Internet", Ph.D. Dissertation in Sociology from UC-Berkeley 1998, ch. 2. at http://www.nathannewman.org/diss/index.html. That Google as a single actor can indeed dominate and dictate the Internet's speech flow is precisely the impetus for the Complaint and this motion. Second, the U.S. Supreme Court affirms that the Internet functions as a forum for massive participation and expression. In citing a lower court's finding of facts, the Court said that it is "no exaggeration to conclude that the content of the Internet is as diverse as human thought." Reno, 521 U.S. at 849 quoting 929 F.Supp. at 835 (finding 27). Justice Kennedy called the Internet a "metaphysical" public forum in Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 830, 115 S. Ct. 2510,132 L. Ed. 2d 700 (1995). Justice Breyer stated "we would hesitate to import `the public forum doctrine . . . wholesale' in the context of the Internet." Denver Area Ed. Telecommunications Consortium Inc. v. FCC, 518 U.S. 727, 749, 135 L.Ed.2d 888, 116 S. Ct. 2374 (1996). Following these opinions, one legal commentator made clear the function of the Internet in the context of free speech: Private companies have now taken over the government's role in providing funds and the actual communications backbone of the Internet, but the essential public character of the system is the same: from the perspective of the speakers, listeners and viewers, the privatized Internet remains like a public park the most traditional of traditional public forums a place where anyone can enter at any time of day and speak on any subject that comes to mind to anyone willing to listen. There are no "no trespassing" signs on the Internet." Gey, Steven G., "Reopening the Public Forum From Sidewalks to Cyberspace," ("Gey Forum Article"), 58 Ohio St. L. J. 1539, 1619 (1998) (emphasis added). Therefore, the Internet amasses discrete voices into "the most participatory marketplace of mass speech that this country and indeed the world has yet seen." Reno, 929 F.Supp. at 842.8 Finally, the free speech on the Internet promotes and constitutes democracy because it is 8 This Court itself has recognized that the World Wide Web is a "publishing forum consisting of millions of individual websites that contain a variety of content." Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1181, 1183 n.1 (N.D. Cal. 2001), rev'd 379 F.3d 1120 (9th Cir. 2004), vacated and reh'g granted 399 F.3d 1010 (9th 2005), rev'd and remanded 433 F.3d 1199 (9th Cir. 2006) . NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -16- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 17 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 participatory. Mr. Gey concludes his commentary with this: "The great democratic tradition of public discussion and debate cannot be protected adequately unless the image of the public forum is updated to conform with the realities of the new era of communication." Id., Gey Forum Article at 1634. When a single actor uses its proprietary interest and control over a search engine to block out others, participation of other voices suffers immeasurably as does democracy. One noted expert on free speech warns: "The developing capitalist conception of freedom of speech (and its accompanying denial of free speech limitations on the growth of intellectual property) is inconsistent with the growth of democratic culture." Balkin, Jack "Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society," 79 N.Y.U L. Rev. 1, 46 (2004). A. The U.S. Supreme Court has Acknowledged that Public Forum Analysis Applies to the Internet. A speech forum falls into one of three categories, as articulated by the Supreme Court "the traditional public forum, the public forum created by government designation, and the nonpublic forum." Arkansas Educ. Television Commission v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998). Absent a case of a traditional public forum, in both a designated public forum and a nonpublic forum, there are still restrictions on suppression of speech. If a speaker is excluded in a designated public forum, strict scrutiny apples; if it is a nonpublic forum, restrictions must nonetheless at least be reasonable. Id. The Internet continues to exponentially increase speech in the public domain. The Internet contains extraordinary breadth in the modes, channels and access points to both speak and be heard. Ten years have passed since Justice Breyer's dictum in Denver Area Ed. about caution in deeming components of the Internet as public fora. The provisional and ultimate ruling on search indexing and results requires precision on the exact purpose, nature, and locus of this speech over the Internet as well as prudence and fairness. Congress likewise has statutorily confirmed that the Internet is "a forum for true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual development." CDA 230(a)(3). NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -17- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 18 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court has opined that other than for traditional public fora, the classification of a particular forum does not depend on any general view of the property, but upon the exact nature of access sought: Although . . . a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns, forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompasses that property. [Citation omitted.] In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property. . . Here, . . . respondents seek access to a particular means of communication. Cornelius v. NAACP, 473 U.S. 788, 800; 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). In Cornelius, the Court narrowly tailored the public forum analysis to access sought by the NAACP to be included in an annual federal employee charitable fund drive known as the "Combined Federal Campaign" that lists eligible charities. The Ninth Circuit follows this analytic framework by focusing on not merely the "nature and function" of the system or fora, but also the specific "access sought by the speaker". Currier v. Potter, 379 F.3d 716, 727 (9th Cir. 2004). Access to a variety of communication channels have been held not to be under First Amendment protection. These include: an internal e-mail system (Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 48-49, 103 S. Ct. 949, 74 L. Ed. 2d 744 (1983); Faculty Rights Coalition v. Shahrokhi, 2005 U.S. Dist. LEXIS 16227 (S.D. Tex. Jul 13, 2005), recons. denied, 2005 U.S. Dist. 16293 (S.D. Tex Aug. 10, 2005)); a general mail delivery system for the homeless lacking physical mailing addresses (Currier, supra, 379 F.3d at 729-30); and secondlevel domain name (i.e., human-readable) registration (National A-1 Advertising, Inc. v. Network Solutions, Inc., 121 F.Supp.2d 156, 178 (D. NH 2000)). In National A-1, the court found that "[n]o tangible form of expression ha[d] been suppressed by . . . [the] refusal to register . . . second level domain names." In doing so, the court recognized that Internet speech had alternative avenues to flow, either by extending expressive messages through the plaintiff's URLs or by revealing expression through the return of a "hit" by a search engine. Id. at 179. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -18- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 19 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In this case, access to a speech forum by KSC is two-fold. First, it seeks to have KS.com re-included within Google's search engine index after it was first indexed for a long period of time and then suddenly banished and blocked. Second, it requires an ongoing restoration of its PageRank to its natural level, free of manipulation or artificial depression instigated by Google. The access sought is in no way a general request to manage the search index or to invade the process of how Google controls or calculates the search engine results or PageRank. Under the guidelines of the Ninth Circuit in Currier, the forum access should be clearly identified for consideration of First Amendment protection. The holding of National A-1, though, not binding here, is quite relevant. First, a court must study whether expression can and does flow by means of access to the forum in question. Apparently, no such communication or message would generally be spoken by second level domain names on the Internet. Second, the court explicitly recognized that speech flows by means of search indexing and results based upon Website content that embeds meta-tags. Id. at 180. This means that a practical identifier and locator, such as an address, phone number, or domain name, by itself bears no message to be heard. Search engine usage and indexing, however, do lead a listener to a Website that is both derived from, and communicative of, content on the site itself. B. Search Engine Use and Indexing Uniquely Radiates and Promotes Free Speech in Cyberspace. Websites are located, seen and heard by three basic means: (1) Entering a site address in the browser window; (2) clicking on a hyperlink on a Webpage or document to a related Website; or (3) Entering a key word or words to access a group of sites produced by a search engine index. National A-1, 121 F. Supp. 2d at 163-64. Search engines locate and algorithmically value sites for the search engine user by examining the very content on the site itself. The site contains meta-tags that are detected and read by the search engine to generate results. Id. Content relevancy yield listings on results pages. "Use of a `search engine' can turn up hundreds of web sites, and there is nothing equivalent to a phone book or director assistance on the Internet." Panavision International, L.P. v. Dennis Toeppen, Network Solutions, Inc., 141 F. 3d 1316, 1327 (9th Cir. 1998) (emphasis added). Therefore, search NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -19- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 20 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 engines are the only effective way to identify and see content and Websites of millions of persons and businesses. Further, the Ninth Circuit noted that "use of a search engine can generate as many as 800 to 1000 matches and it is `likely to deter web browsers from searching for a Plaintiff's particular web site.'" Id. at 1327 (citing TeleTech Customer Care Mgmt. (Cal.), Inc. v. Tele-Tech Co., 977 F.Supp. 1407, 1410 (CD Cal. 1997)). The practical reality therefore is that search results fundamentally affect whether, how and how often free speech from a Website as KS.com is found, read and heard, if ever. The listing of these matches would surely discourage a browser and search engine user from exhausting time and energy to wade through hundreds and thousands of listings when a site is improperly buried deep into the listings or made absent altogether by de-indexing. Given that Google's search indexing and results are the true speech forum in question, this forum should properly be deemed a "designated" public forum among the three types of speech fora. The Internet's amalgamation of actors include of a variety of private participants. Some are merely Websites that present or provide indigenous content. Others, such as Cisco, provide hardware and software for the network infrastructure. Still others are Internet Service Providers (ISPs), which have unique freedom and responsibility. Private ISPs, though often not engaged in state action, run afoul of the First Amendment when imposing content-driven restrictions on access. See Compuserve, Inc. v. Cyber Promotion, Inc., 962 F.Supp. 1015 (E.D. Ohio 1997). On legal commentator argues that a "publicly accessible instrumentality of communication" as the Internet creates obligations for ISPs that restrict access to the Internet. Gey Forum Article, at 1617 n. 373. He reasons: [I]n the case of a private company offering members of the public general access to the Internet, the "property" . . . is not dedicated to a purpose other than speech. Speech is the purpose of this particular type of property, and if . . . speech on the Internet takes place in a public forum, then a private ISP that provides public access to the Internet should be obligated to follow the rules that define that forum. In other words, the private ISP must permit its customers to have access to all speech in the forum, regardless of what the operators of the ISP think about the content of that speech. As compensation for giving up control over what their customers may access over the Internet, this mandatory access rule would insulate the ISP's from civil liability for tortious speech distributed over their system. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -20- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 21 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. The protection against the unhindered harmful flow of content on the Internet first was laid down in CDA. After successful constitutional objections were raised, the Act was recast and reenacted as the Child Online Protection Act ("COPA"), 47 U.S.C. 231, in 1998. Later in 1998 following Gey's article, COPA was written into law and expressly provided Web content immunity not only for persons providing an "Internet access service" (i.e. ISPs), but also those providing an "Internet information location tool" (i.e., search engines). 47 U.S.C. 231(b)(2-3). Search engines or "Internet location tools" uniquely make speech happen between and among speakers and listeners in three key respects. First, an estimated three-quarters of all American households have Internet access.9 Search engine results are incredibly voluminous and almost instantaneous. For the user, receiving these results is receiving free speech from Websites. The First Amendment also protects the users or listeners through a search engine operating in the public domain. The Supreme Court has said, "By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public's interest in receiving information." Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 8, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (emphasis added). "The Constitution protects the right to receive information and ideas." Reno, 521 U.S. at 874. Second, the user actively seeks out concurrent speakers from multiple Websites through the search engine. There ought to be a logical and legal distinction between unsolicited and solicited communications over the Internet.10 When the user enters a search request, she is solicits speech from a multitude of Websites in one search cycle. The policy concerns of harm, inconvenience and invasion of privacy weigh heavily against unsolicited e-mail spam content. To the contrary, Website content, whenever possible, should freely flow to listeners having evinced clear intentions to be spoken to. This Court should assure that when a hearer uses a 9 Back in 2004, the Third Circuit noted that by 2006, over 75% of all households in the U.S. would be online. Prometheus Radio Project v. FCC, 373 F.2d 372, 448 (3rd Cir. 2004). 10 For a detailed treatment of free speech issues affecting unsolicited Internet communications, such as spam, e-mail blasts, etc., see Note, "The Impermeable Life: Unsolicited Communications in the Marketplace of Ideas," 118 Harv. L. Rev. 1314 (Feb. 2005) ("Harvard Note on Communications"). The author plainly observes that when a person opens a Web browser to view information on her screen, none of that information is "unsolicited." Id. at 1328. Likewise, Plaintiffs urge that the Court take notice of the fact that when a person enters in key word searches on a search engine, information and speech displayed on results pages is not unsolicited either. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -21- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 22 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 publicly accessible search engine to actively and willfully solicit speech from Websites, those sites should appear and be heard without interference, intrusion or bias. Third, while Congress under COPA is quite wary of the easy and dynamic Internet access to harmful material by minors, it carved out statutory immunity for search engines as Google when presenting such material. Google clearly participates and benefits from the public domain of the Internet. Accordingly, Google should properly allow (as it indeed promises publicly) all Websites to naturally lodge within and freely speak outside of the index, particularly when under a safe harbor created by Congress. C. Inclusion, Not Exclusion, is Favored under the First Amendment. The First Amendment is defined by inclusion in the very broadest sense. This means inclusion of listeners who need access and speakers who have more, not less content to share. Justice Thurgood Marshall 35 years ago expressed his growing burden about free speech access for listeners: "For many persons who do not have easy access to television, radio, the major newspapers, and the other forms of mass media, the only way they can express themselves to a broad range of citizens on issues of general public concern is to picket, or to handbill, or to utilize other free or relatively inexpensive means of communication." Lloyd Corp. v. Tanner, 407 U.S. 551, 581-82, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) (dissenting opinion) (emphasis added). Today. the Internet emerges as these means of communication. He closed forcefully with a candid assessment of the future of communications: It would not be surprising in the future to see cities rely more and more on private businesses to perform functions once performed by government agencies. The advantage of reduced expenses and an increased tax base cannot be overstated. As governments rely on private enterprise, public property decreases in favor of privately owned property. It becomes harder and harder for citizens to find means to communicate with other citizens. . . . When there are no effective means of communication, free speech is a mere shibboleth. Id. at 586. In one sense, the Internet has also evolved that way in its ownership -- from its origin within the federal government to management by private participants. Therefore, the First Amendment should, wherever possible and equitable, afford easy, unhindered access by all listeners. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -22- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 23 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Inclusion is also an overriding concern for content published by speakers entitled to free speech. Censorship or total blockage of Websites is truly abhorrent to any notion of democracy and free speech, including to that held by Google itself.11 If the practice or process of Blocking specific sites or content happens here in the United States, that offends not just a vital First Amendment policy but also Google's own policy conviction of a "contribution to the overall expansion of access to information" on the Internet, as aired before the House International Relations Committee on February 15, 2006.12 In China, targeted censorship openly occurs on www.google.cn, and surely Google has perfected the technical means to do so to comply with government demands. Inclusion of even offensive content is almost universally protected by federal courts. The Supreme Court stuck down provisions of the CDA in Reno, 521 U.S. at 874, as violating the First Amendment. This Court in Yahoo! ruled that Nazi-oriented material and products should remain accessible on the company's Website, even though it related to the perhaps the gravest of war crimes against humanity.13 Even in the face of a trademark infringement suit against defendant's domain name that appended "sucks" to the root domain name of the owner, the Central District of California ruled against the owner and noted that "the average Internet user may want to receive all the information available" on the plaintiff on the Web. Bally Total Fitness Holding Corporation v. Faber, 29 F. Supp. 2d 1161, 1165 (C.D. Cal. 1998). Plaintiff KSC sees the District and Ninth Circuit opinions in Yahoo! bearing upon the deindexing and reinclusion of Plaintiff's site by Defendant Google. Two points from this case bolster Plaintiff's claim of First Amendment violations. First, the open, public nature of Internet access is just that a stronger free speech right may lie and deserve protection when the On February 15, 2006, four companies -- Google, Yahoo!, Microsoft and Cisco appeared and testified before the Subcommittee on Asia and the Pacific, Committee on International Relations before the U.S. House of Representatives about the censorship practices executed upon the citizenry of China. Congress soundly condemned the practice of Google to censor its content concerning Tiananmen Square and other subjects offensive to the Chinese government. In the written testimony of its Vice President of Global Communications and Public Affairs, Google stated: "The requirements of doing business in China include self-censorship something that runs counter to Google's most basic values and commitments as a company." www.house.gov/international_relations/aphear.htm (109th Cong. 2d Sess., Feb. 15, 2006), p. 1. 12 Id. 13 See n. 8, supra Yahoo!, 169 F. Supp. 2d at 1194. NOTICE OF MOTION, MOTION AND MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION -23- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 16 Filed 05/26/2006 Page 24 of 48 1 2 3 4 5

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