Kinderstart.Com, LLC v. Google, Inc.

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Kinderstart.Com, LLC v. Google, Inc.

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Gregory J. Yu (State Bar No. 133955) GLOBAL LAW GROUP 2015 Pioneer Court, Suite P-1 San Mateo, CA 94403 Telephone: [phone] Facsimile: [phone] 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 Case No. C 06-2057 JF KINDERSTART.COM LLC, a California limited liability company, on behalf of itself and all others similarly situated, OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE FIRST Plaintiffs, AMENDED COMPLAINT v. GOOGLE, INC., a Delaware corporation, Defendant. Judge: Hon. Jeremy Fogel Date: June 30, 2006 Time: 9:00 a.m. Courtoom: 5th Floor, Room 3

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii I. II. III. INTRODUCTION .......................................................................................................... - 1 UNDERLYING FACTS................................................................................................. - 2 ARGUMENT IN OPPOSITION TO THE MOTION .................................................... - 3 A. Count One Properly States a Claim under the First Amendment and the California Constitution ....................................................................................... - 3 1. 2. 3. 4. Private Space for Dedicated Public Use Can House State Action.......... - 3 Search Engines Dedicated to Public Use is an Essential Public Service and is a Dedicated Public Speech Forum. ................................. - 7 Google's PageRank is Commercial Speech subject to Challenge........ - 10 Violation of Free Speech Rights in California is Properly Pleaded ..... - 11 -

Count Eight, Defamation and Libel, Properly States a Claim for Relief ......... - 13 Count Nine, Negligent Interference Claim, Properly States a Claim for Relief. .......................................................................................................... - 14 Counts Two and Three Properly Claim Sherman Act Section 2 Violations. ... - 16 Count Six, BPC § 17045, Properly States a Claim for Relief. ......................... - 19 Count Four, Communications Act Violations, Properly States a Claim for Relief. .......................................................................................................... - 20 Count Five, BPC §§ 17200 et seq., Properly States a Claim for Relief ........... - 22 Count Seven, Implied Covenant, Properly States a Claim for Relief............... - 25 -

CONCLUSION............................................................................................................. - 25 -

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TABLE OF AUTHORITIES CASES ABC Int'l Traders, Inc. v. Matsushita Elec. Corp. of Am., 14 Cal. 4th 1247, 1257, 1271, 61 Cal. Rptr. 2d 112, 931 P.2d 290 (1997) ...........................................................................................- 24 Allied Grape Growers v. Bronco Wine Co., 203 Cal. App. 3d 432 (1988) ..............................- 24 Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968)..............................................................................................................- 3 American Philatelic Soc. v. Claibourne, 3 Cal.2d 689, 698 (1935) .........................................- 24 Anaheim v. Southern California Edison Co., 955 F.2d 1373, 1380 (9th Cir. 1992) ................- 17 Ashcroft v. ACLU, 542 U.S. 656, 159 L. Ed. 2d 690, 2004 U.S. LEXIS 4762 (2004).............- 21 Aspen Skiing Co., v. Aspen Highlands Skiing Corp., 472 U.S. 585, 86 L. Ed. 2d 467, 105 S. Ct. 2847 (1985).....................................................................................................................- 18 Badie v. Bank of America, 67 Cal. App. 4th 779, 796, 79 Cal. Rptr. 273, 284 (1998) ............- 25 Board of Trustees, State Univ. of N. Y. v. Fox, 492 U.S. 469, 474, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989).................................................................................................................- 10 Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001)....................................................................................................- 4 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).........................................................................- 6 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) ..............................- 21 Cel-Tech Communications Inc. v. Los Angeles Cellular Phone Co., 20 Cal. 4th 163, 187, 973 P.2d 527, 83 Cal. Rptr. 2d 548 (1999)...............................................................................- 24 City & County of San Francisco v. Philip Morris, Inc., 957 F. Supp. 1130, 1143 (N.D. Cal. 1997) .........................................................................................................................................- 14 Concord v. Boston Edison Co., 915 F. 2d 17, 22 (1st Cir. 1990) .............................................- 18 Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802, 473 U.S. 788; 105 S. Ct. 3439; 87 L. Ed. 2d 56 (1985)......................................................................................................- 7 Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp.436 (E.D. Pa. 1996) .................- 5 Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-596 (9th Cir. 2004)...................................- 1 Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003) .............................................................- 25 E. & J. Gallo Winery v. Encana Energy Services, 388 F. Supp. 2d 1148, 1156 (E.D. Cal. 2005) ...........................................................................................................................................- 1 OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

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FCC v. Midwest Video Corp., 440 U.S. 689, 701 n.10, 59 L. Ed. 2d 692, 99 S. Ct. 1435 (1979)........................................................................................................................................- 20 Ferguson v. Greater Pocatello Chamber of Commerce, Inc., 848 F.2d 976, 983 (9th Cir. 1988) .........................................................................................................................................- 17 First Nationwide Savings v. Perry, 11 Cal.App.4th 1657, 1662 (1992)...................................- 23 George v. Pacific CSC Work Furlough, 91 F.3d 1227, 1230 ( 9th Cir. 1990) (per curiam) ................................................................................................................................- 6 Ghirardo v. Antonioli, 14 Cal.4th 39, 51, 57 Cal. Rptr. 2d 687, 924 P.2d 996 (1996) ............- 23 Glendale Associates, Ltd., v. N.L.R.B., 347 F.3d 1145 (9th Cir. 2003)....................................- 11 Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal.4th 1013, 1025-31, 29 P.3d 797, 111 Cal.Rptr.2d 336 (2001) .................................................................- 11 Hirsch v. Bank of America, 107 Cal.App.4th 708, 722 (2003).................................................- 23 Hollenbaugh v. Carnegie Free Library, of Connellsville, Pa., 545 F.2d 382, 283 (3rd Cir. 1976) ...........................................................................................................................................- 9 Horvath v. Westport Library Association, 362 F.3d 147 (2nd Cir. 2004)..................................- 8 Hudgens v. NLRB, 424 U.S. 507, 86 S. Ct. 1029, 47 L. Ed. 2d 196 (1975) ...............................- 3 International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 680, 112 S. Ct. 2649; 120 L. Ed. 2d 467 (1992)............................................................................................................- 7 Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003).................................................................- 1 Kasky v. Nike, Inc., 27 Cal 4th 939, 960-61, 45 P.3d 243, 119 Cal.Rptr.2d 296 (2002)...........- 10 La Sala v. American Sav. & Loan Ass'n, 5 C.3d 864, 97 Cal. Rptr. 849, 489 P.2d 1113 (1971)........................................................................................................................................- 23 Lange v. TIG Ins. Co., 68 Cal. App. 4th 1179, 1187 (1998) ....................................................- 16 Lee v. Katz, 276 F.3d 550 (9th Cir. 2002) ..................................................................................- 5 Lee v. Life Ins. Co., 23 F.3d 14, 18-19 (1st Cir. 1994) .............................................................- 16 Lloyd Corp. v. Tanner, 407 U.S. 551, 563, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) ........... passim Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946) .....................................- 3 MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124 (9th Cir. 2004), cert. denied, 2005 U.S. LEXIS 4202 (U.S., May 23, 2005)...................................................................................- 17 Motors, Inc. v. Times Mirror Co., 102 Cal. App. 3d 735, 740 (1980). ....................................- 24 National Ass'n of Regulatory Utility Comm'rs v. FCC, 174 U.S. App. D.C. 374, 533 F.2d 601, 608 (D.C. Cir. 1976) .........................................................................................................- 20 Official Airline Guides, Inc. v. FTC ("OAG"), 630 F.2d 920 (2nd Cir. 1980), cert. denied, 450 U.S. 917, 101 S. Ct. 1362, 67 L. Ed. 2d 343 (1981).................................................................- 19 OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF
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Panavision International, L.P. v. Dennis Toeppen, Network Solutions, Inc., 141 F. 3d 1316, 1327 (9th Cir. 1998) ...................................................................................................................- 9 Parker v. Google, Inc., 422 F. Supp. 2d 492 , ___ (E.D. Pa. 2006) .........................................- 21 Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 851 (C.D. Ca. 2006) ......................................- 7 Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980)..........................................................................................................................................- 3 Riley v. National Federation of the Blind, 487 U.S. 781, 108 S. Cut. 2667, 101 L. Ed. 2d 669 (1988).................................................................................................................................- 10 Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, 908, 910, 153 Cal. Rptr. 854, 592 P.2d 341 (1979),................................................................................................................................- 11 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)............................................................................................................- 3 Rubin v. Coors Brewing Co., 514 U.S. 476, 481-82; 115 S. Ct. 1585; 131 L. Ed. 2d 532 (1995)........................................................................................................................................- 11 Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 736 (9th Cir. 1987) .......................- 16 Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) ........................- 1 Search King, Inc. v. Google Tech., Inc. No. CIV-02-1457, 2003 WL 21464568 (W.D. Okla. 2003) (unreported decision cited by defendant in its motion)..................................................- 13 Smith v. City and County of San Francisco, 225 Cal. App. 3d 38, 49, 275 Cal. Rptr. 17, 23 (1990)........................................................................................................................................- 25 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam), cert. denied, 538 U.S. 921, 155 L. Ed. 2d 311, 123 S. Ct. 1570 (2003).........................................................................- 1 Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 117 S. Ct. 1174 137 L. Ed. 2d 369 (1997)........................................................................................................................................- 10 United States v. American Library Association, Inc., 539 U.S. 194, 123 S. Ct. 2297, 156 L.Ed.2d 221 (2003).....................................................................................................................- 8 United States v. Citizens & Southern National Bank, 422 U.S. 86, 91, 45 L. Ed. 2d 41, 95 S. Ct. 2099 (1975)................................................................................................................- 18 Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP, 540, U.S. 398, 124 S. Ct. 872, 157 L. Ed. 2d 823 (2004).................................................................................- 17 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976)...........................................................................- 13 Wyatt v. Terhune, 315 F. 3d 1108, 1113-14 (9th Cir. 2002) ....................................................- 13 STATUTES 17 U.S.C. § 512(d) ....................................................................................................................- 21 28 U.S.C. § 1332.......................................................................................................................- 22 OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF
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47 C.F.R. § 64.702(a) ..............................................................................................................- 21 47 U.S.C. § 151.........................................................................................................................- 22 47 U.S.C. § 230(f)(2) ................................................................................................................- 21 47 U.S.C. § 231(e)(4) ...............................................................................................................- 21 47 U.S.C. § 231(e)(5) ...............................................................................................................- 21 47 U.S.C. §§ 206, 207...............................................................................................................- 22 BPC § 17045.............................................................................................................................- 20 California Business and Professions Code ("BPC") Sections 17040 et seq.............................- 19 Child Online Protection Act ("COPA"), 47 U.S. C. § 230(f)...................................................- 21 Communications Act, 47 U.S.C. §§ 201 et seq. .......................................................................- 20 Communications Decency Act of 1996 ("CDA") at 47 U.S.C. § 231.....................................- 21 Fed.R.Civ.P. 15.........................................................................................................................- 25 Sherman Act, 15 U.S.C. § 2......................................................................................................- 16 Unfair Competition Law ("UCL") under BPC §§ 17200 et seq...............................................- 22 OTHER AUTHORITIES "The Federal Government Information Environment of the 21st Century: Towards a Vision Statement and Plan of Action for Federal Depository Libraries, Discussion Paper, The Depository Library Council, Sept. 2005 at http://www.access.gpo.gov/su_docs/fdlp/pubs/dlc_vision_09_02_2005.pdf.............................- 7 Gey, Steven G., "Reopening the Public Forum ­ From Sidewalks to Cyberspace,", 58 Ohio St. L. J. 1539, 1619 (1998) ...........................................................................................- 9 http://www.infosci.cornell.edu/about/colloquiumSP06/may5.html, visited May 24, 2006........- 7 Note, "The Impermeable Life: Unsolicited Communications in the Marketplace of Ideas," 118 Harv. L. Rev. 1314, 1331 n.88 (Feb. 2005) (emphasis added)............................................- 9 -

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I. INTRODUCTION Google repetitively and intentionally blocks and censors a multitude of Websites based on content review, no reason at all, and anticompetitive reasons. On top of that, it uses its universal PageRank system to degrade and deflate these sites. Rather than even address the realities or a practical change or restraint of its unbridled practices, Google moves to dismiss all nine counts in the First Amended Class Action Complaint ("FACAC"). Google hopes that Blockage and PageRank devaluation of Websites will remain completely secure from any judicial scrutiny or restriction under law. The motion (the "Dismissal Motion") cites Rule 12(b)(1) and 12(b)(6), but the former relates to subject jurisdiction flaws, and the latter does not consider external evidence. Any factual disputes or affirmative defenses now brought, including those raised by Defendant's Declaration to its motion, should not be considered by the Court.1 A Rule 12(b)(6) motion proceeds only as all allegations of material fact in the complaint are taken as true and construed in the light most favorable to plaintiff. Dismissal of any claims in the complaint is suitable only if it is without doubt that plaintiff cannot construe any set of alleged facts to support relief. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam), cert. denied, 538 U.S. 921, 155 L. Ed. 2d 311, 123 S. Ct. 1570 (2003); Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-596 (9th Cir. 2004). The Ninth Circuit cautions, in reviewing the sufficiency of a complaint, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)). As argued below, dismissal of any one of the nine counts within the amended complaint at this earliest stage is premature and unfounded under all applicable law and regulations.

If Defendant does introduce external evidence as it has done so in this Motion, it can properly notice a separate, summary judgment motion under Fed.R.Civ.P. 56 to allow all parties and the Court to render a suitable decision. See E. & J. Gallo Winery v. Encana Energy Services, 388 F. Supp. 2d 1148, 1156 (E.D. Cal. 2005). OPPOSITION TO DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

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II. UNDERLYING FACTS Universally, millions of businesses and Web browsers mutually connect through the world's dominant search engine because of one principle ­ linking should happen, freely, reliably and without interruption. Like a phone company, this search engine ought to properly and fairly list and connect Websites each time, without discrimination or denial of service. Google is that clearinghouse, channel and conduit, 24-7, for millions of Web destinations worldwide. With an absolutely trusting public, Google wields unprecedented power and authority. Google claims to index all Websites but that is not reality with its removal practices. This class action was brought because the Google brand of censorship bans and removes thousands of sites complete from the index, likely not to be found for a long time unless and until Google says so. The wholesale manipulation and denial of access perpetuates harm, lost goodwill and destruction of small businesses. With hard work and sacrifice going back to 2000, lead plaintiff KinderStart.com LLC ("KSC") rose from the ranks to become a choice destination for parents and caregivers of kids. KSC represents all these Blocked2 and devalued Websites for one reason ­ this pernicious practice has to come to an end, even if others are unwilling to aid. Google admits to censorship and Blockage worldwide. It excuses this behavior due foreign laws. Yet in the very center of capitalism, democracy and free speech, Google censors and Blocks with total impunity. Not just particular voices are suffocated, but thousands of ventures and businesses trying to remain within reach in cyberspace of millions of browsers. Google boasts of the free traffic and referrals to sites and seems to wants them to prosper but refuses sites any notice or means of recovery. Further, PageRank devaluation is indiscriminate as Google at will uses the monopoly of website ranking to scale down any site it so chooses. Quite shockingly, Google wants the First Amendment above all other law to sanction pervasive censorship, Blockage and deranking of sites. Its motion to dismiss all nine counts has one mission ­ stop any law, federal or California, from touching any of these insidious practices. But one factual theme must be admitted throughout ­ Google, dominant in search, search ads

"Blockage" is defined as "Google's temporary or permanent blocking of websites" in the First Amended Class Action Complaint ("FACAC"), ¶ 3. Other labels include de-indexing, de-listing and censorship of websites OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF DISMISS FIRST AMENDED COMPLAINT

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and site rankings, denies access and flow of commerce, information and speech. This motion is opposed in its entirety because the law does afford relief and due process. III. ARGUMENT IN OPPOSITION TO THE MOTION A. Count One Properly States a Claim under the First Amendment and the California Constitution 1. Private Space for Dedicated Public Use Can House State Action. The very public search engine in worldwide 24-7 use here reflects state action based on space being a public speech forum. This question clearly does not turn who owns that space. State action is present when open space is free, open and dedicated to public use where free speech can and should thrive. It is now not just private physical space but the Internet subject to public forum analysis. 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). The Court's initial case on public fora within private property was Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946). A private enterprise there exercised semi-official municipal functions as a delegate of the state. Next, the Court in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968) held that First Amendment rights must be respected within a privately owned shopping center which is freely accessible and open to people. Then, the Court in Lloyd Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) introduced the notion that free speech in the space depends on the owner's dedicated purpose. There, the Court noted that the primary purpose of the mall was to promote shopping and goodwill rather than have the public use the mall for any purpose it chose. 407 U.S. at 564-65. Further, the Lloyd majority distinguished the picketers in Logan Valley who lacked other "reasonable opportunities" to convey their message. Id., at 563. The case of Hudgens v. NLRB, 424 U.S. 507, 86 S. Ct. 1029, 47 L. Ed. 2d 196 (1975), confirmed that Lloyd overruled Logan Valley because speech on private property is not protected by the First Amendment if the property is not dedicated to "public use". Hudgens, 424 U.S. at 518-20. Finally, in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980), the Court confirmed
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that no First Amendment right generally exists in a shopping mall as private property, but allowed the State of California to expand protection to speakers under its own state constitution.3 Overall, the key Supreme Court precedents of Marsh, Lloyd and Pruneyard reduce the query to this: What is the dedicated purpose of a speech forum where search engine users surf, search, link to, and read Websites? The sole function and purpose of the search engine is to promote and realize 24-7 speech and communication, openly and freely. There quite simply is no other possible "dedicated" purpose for Google's search engine. The private ownership of the Pruneyard shopping mall and Google's search engine is undisputed (albeit Google's stock is publicly traded). But use of the space of the Pruneyard mall was to promote sales. The Google engine simply delivers free information as speech between millions of voices and speakers. State action is present when a private firm as Google is heavily entwined with government in key state-like functions, as alleged in the amended complaint. The Supreme Court has recently opined on the proper analysis and determination of state action in the context of a 14th Amendment case against a state athletic association as follows: What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government. See Tarkanian, 488 U.S. 193, 196; Polk County v. Dodson, 454 U.S. 312 (1981). Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 121 S. Ct. 924, 148 L. Ed. 2d 807 (2001). Brentwood held that the defendant association was engaged in "public entwinement" when it imposed a speech restriction. The Court noted that "entwinement will support a conclusion that an ostensibly private organization ought to be charged with a

3

Pruneyard's opinion also resolves the issue of the forum owner's own First Amendment right of free speech. The Supreme Court refused to find a First Amendment right of the privately owned space to refrain from speaking because (1) the shopping mall was not personal in use by the owner but was open to the public, (2) the State was in no way dictating a specific message of the shopping mall owner, and (3) the owner could easily disavow any message presented by any speaker on the mall premises. Google's search engine results are the hub of this speech forum. Google (1) does not present a "message" of its own expression or opinion through results, (2) does not adopt an expression or opinion with any particular result, and (3) enjoys the freedom to disavow itself of any results or content produced by the search engine request.

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public character to the degree shown here requires." Id. at 302. Here, the Court announced the guiding principle of "public entwinement" for lower courts to evaluate state action: "When . . . the relevant facts show pervasive entwinement . . . , the implication of state action is not affected by pointing out that the facts might not loom large under a different test." Id. at 304. Therefore, a finding of state action is almost entirely fact dependent. Defendant wants ongoing escape of First Amendment restraints when it blocks, censors, and de-indexes other voices on the Internet. Google believers that the issue depends on such cases about Internet service providers (ISPs). In Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp.436 (E.D. Pa. 1996), the court in relying primarily on a detailed Stipulation of Facts separated AOL, an ISP, from any state action. The three separate tests were considered: (1) the exclusive public function test; (2) actions with the help of or in concert with state officials; and (3) a position of interdependence where the private entity and the state are joint participants. While AOL's e-mail system was open to the public, the court did not find that AOL was performing any "essential public service." Id. at 442. Further, plaintiff could turn to "adequate alternative avenues of communication." The sharp 70% drop in its Web traffic for one year shows KSC lacks any "adequate" or reasonable options. KS.com is ranked by one thing on the Web that is recognized in public ­ PageRank. Moreover, Google runs at least 60% of search and that figure grows daily. (FACAC ¶ 53) Real options for KSC are simply nonexistent. Cyber should not steer any result because its key facts are clearly distinguishable from Google. In Cyber, the Stipulation did not turn on any funding or cooperation between AOL and government. For this Dismissal Motion, there is no stipulation or agreement on essential facts. Cyber preceded the Supreme Court's 2001 Brentwood test of "public entwinement." AOL was not a monopolist of key markets as Google is, now easily recognized as essential to the public flow of speech and information. The Ninth Circuit expressly considered the Supreme Court's guideline of "public entwinement" under Brentwood for First Amendment purposes in Lee v. Katz, 276 F.3d 550 (9th Cir. 2002). Under Brentwood, all that was required for state action was the application of a
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single satisfactory test, and here the Ninth Circuit used the public function test.4 A crucial aspect of its decision was a footnote stating, "It is important to identify the function at issue because `an entity may be a State actor for some purposes but not for others.' George [v. Pacific CSC Work Furlough], 91 F.3d [1227,] 1230 ( 9th Cir. 1990) (per curiam)." Lee, 276 F.3d at 556 n.5. Moreover, the Lee opinion amply relies upon Marsh to recognize that a speech forum is "accessible to and freely used by the public in general" and that "[o]wnership does not always mean absolute dominion . . . [Where] facilities are built and operated primarily to benefit the public . . . . their operation is essentially a public function." Lee, 276 F.3d at 556. Google's engine is assuredly a public function because it operates for public benefit. See Perfect 10, infra. In the Ninth Circuit, a private actor engages in state action when conferring upon a government entity a windfall of benefits. "For example, if a private entity, . . . , confers significant financial benefits indispensable to the government's "financial success," then a symbiotic relationship [between the entity and the government] may exist." 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). Public entwinement is a broad, deep exchange of benefits for mutual gain. The exchanged monetary, digital and copyright value between Google, on one hand, and large government and public university libraries, on the other, is staggering. Both sides of the table will reap enormous benefits from these ongoing collaborative relationships to amass, share and index digital content of unprecedented proportions. Today, the alignment, cooperation and entwinement between Google and the government are deep, pervasive and clearly unprecedented. Google exudes a burgeoning of cooperation with the public sector, and particularly with the federal government. for search engine indexing and results. Google links its www.google.com/unclesam with hundreds of federal and state Websites and has the attention of the Government Printing Office and the Federal Depository Libraries to partner and share information and online content.5 Today, Google is massively copying and
4

Pursuant to its finding of state action, the Ninth Circuit remanded the case to have the State actor consider imposing reasonable restrictions on the speech on the time, place and manner of speech. Id. at 557. 5 See "The Federal Government Information Environment of the 21st Century: Towards a Vision Statement and Plan of Action for Federal Depository Libraries, Discussion Paper, The Depository Library Council, Sept. 2005 at OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF DISMISS FIRST AMENDED COMPLAINT

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digitizing from five major research libraries, all under a formal agreement.6 Two of these institutions are public, one of which (Michigan) will surrender 100% of its contents for copying by Google. Larry Page has been quoted as being a "firm believer in academic libraries being able to `monetise' the information they hold." Public benefit of Google's engine are plainly recognized as has the Central District of California. Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 851 (C.D. Ca. 2006) (confirming the enormous "public benefit" of Google's search engine). The ultimate goal of a universal digital library of all content is a massive project requiring a partnership and collaboration of private actors undertaking state-like functions. Google is the leading force and influence in the search ecosystem which enormously benefits the public sector.7 Google is a state actor in a public speech forum on the Internet when it delivers an essential public service with its search engine index and search results. The overlay of information, search and information access shared between government and Google compels a finding of state action. A motion to dismiss is clearly not in order. 2. Search Engines Dedicated to Public Use is an Essential Public Service and is a Dedicated Public Speech Forum. Google's search engine is open, free and public in nature and dedicated for public use and public speech. The Supreme Court held that a designated public forum is present with a "decision to designate public property as a public forum must be made `by intentionally opening a nontraditional forum for public discourse.'" International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 680, 112 S. Ct. 2649; 120 L. Ed. 2d 467 (1992) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802, 473 U.S. 788; 105 S. Ct. 3439; 87 L. Ed. 2d 56 (1985)). Google's search engine indexing and use have pervasive use such that it is now an essential public service by any reasonable standard. Google's mission is to amass all possible online and offline content in the public domain and connect it to public users, and thereby.

http://www.access.gpo.gov/su_docs/fdlp/pubs/dlc_vision_09_02_2005.pdf. 6 A Professor at the School of Information Management and Systems, the Haas School of Business, and the Department of Economics at the University of California, Berkeley, fully endorses the Google Library Digitization Project as a legitimate, fair use of public resources under copyright law. http://www.infosci.cornell.edu/about/colloquiumSP06/may5.html, visited May 24, 2006. 7 One example of the growing partnership is explained in the white paper referred to in note 5 supra. OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF DISMISS FIRST AMENDED COMPLAINT

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activate and promote speech and communication. Google has become entirely essential to millions of Websites. Two key functions are under examination in Google's case. First, Google manages the world's most pervasive search engine, with access to up to 10 billion Web pages. [FACAC ¶ 34.] This engine is open and freely available to the public. The second function is Google's entanglement or entwinement in a public function of a dynamic, ubiquitous, collection and index of Web content from all over the world, used and refreshed on a daily basis, 24-7. The Internet may bear some attributes to a library, but a search engine as Google's is exponential and dynamic in growth, scope and purpose. The very public and transnational nature of the Internet has received limited attention of the Supreme Court in the determination of what constitutes a "public forum" for First Amendment protection. In United States v. American Library Association, Inc., 539 U.S. 194, 123 S. Ct. 2297, 156 L.Ed.2d 221 (2003) ("ALA"), the Supreme Court held that the Children's Internet Protection Act (CIPA) could constitutionally withhold federal funding of libraries refusing to install filtering software. "Internet access in public libraries" is neither a traditional public forum nor a designated public forum." Id. at 20506. Amid concerns of how overblocking content would otherwise violate First Amendment rights of Web authors, the Court carefully noted the Solicitor General's oral statement that a "library may . . eliminate the filtering with respect to specific sites . . . at the request of a patron." The CIPA further "expressly authorizes library officials to `disable' a filter altogether." Id. at 209. Thus, the Court found that a non-public forum applying CIPA does not violate the First Amendment where reasonable and viable access to open up the flow of Internet comes upon a simple request immediately honored by the librarian. or restriction. Google's search engine is far more pervasive than the operation of a physical library that works as a static collection of printed, visual and audio materials. ALA is important precedent, but its public forum analysis was simply Internet access at a local public library during business hours. The Second Circuit considered a constitutional claim made by a employee terminated by a city library in Horvath v. Westport Library Association, 362 F.3d 147 (2nd Cir. 2004). There was an absence of state action because the court relied upon a Third Circuit case to conclude that
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it cannot be said that " `the operation of a library constitutes a function traditionally associated with sovereignty.' " Hollenbaugh v. Carnegie Free Library, of Connellsville, Pa., 545 F.2d 382, 283 (3rd Cir. 1976). Google's worldwide index and engine is not a local physical library, but a massive directory and search tool, equipped with e-commerce or commercial advertising never found at a local library. "Use of a `search engine' can turn up hundreds of web sites, and there is nothing equivalent to a phone book or directory assistance on the Internet." Panavision International, L.P. v. Dennis Toeppen, Network Solutions, Inc., 141 F. 3d 1316, 1327 (9th Cir. 1998) (emphasis added). Google's engine has become the key access channel and online storefront and Internet directory for almost every vital U.S. business and organization. Two legal commentators independently argue that the public access within the Internet creates obligations for ISPs refrain from blocking access. Professor Steven G. Gey focuses precisely on a private player who occupies the center of this speech forum: [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. Gey, Steven G., "Reopening the Public Forum ­ From Sidewalks to Cyberspace," 58 Ohio St. L. J. 1539, 1619 (1998). The Supreme Court required cable operators to carry broadcast television content against their wishes in Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 117 S. Ct. 1174 137 L. Ed. 2d 369 (1997). When viewing the Turner holding, a second commentator on free speech recently observed, "One could imagine the [Supreme] Court upholding regulations requiring ISPs to carry websites." Note, "The Impermeable Life: Unsolicited Communications in the Marketplace of Ideas," 118 Harv. L. Rev. 1314, 1331 n.88 (Feb. 2005) (emphasis added). The cable medium understandingly has limited bandwidth and space, but the Supreme
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Court authorized must-carry provisions to go forward. But ISPs and search engines as Google deal with almost limitless space and freedom as to sites and content worldwide. Therefore, requiring an ISP or search engine to preserve access when operating and benefiting from the open public domain of the Internet fulfills First Amendment purposes. Google is all about speech and serving the public as intermediary and conduit. A willful act to remove pre-existing content and linkages ought to invite judicial intervention on First Amendment grounds that much more. Overall, Google's search engine channels flow of speech among users and speakers linking to each other and to world's largest base of Websites and digital content Instrumental to this is all the very active participation with and assistance of government and university libraries. FACAC ¶¶ 22-26. All of the information and speech flow in this public forum happens with a search tool dedicated for public use and benefit. The intent and actions demonstrate a unprecedented mission of Google's search engine to serve and benefit the public. State action is present in this speech forum of which Google is the steward. Thus, even as Plaintiffs allege the requisite entwinement and dedicated nature of Google's search engine, state action can be established here under law. The motion as to Plaintiffs' First Amendment rights being violated should be denied. 3. Google's PageRank is Commercial Speech subject to Challenge. Three elements establish commercial speech: (1) the speaker is engaged in commerce, (2) an intended commercial audience is present; and (3) representations of fact are commercial in nature. Kasky v. Nike, Inc., 27 Cal 4th 939, 960-61, 45 P.3d 243, 119 Cal.Rptr.2d 296 (2002). The fact that Google harbors some altruistic motive behind PageRank, site indexing, or Blockage is immaterial and does not convert its statements or conduct into noncommercial speech. Intertwined commercial and noncommercial speech does not make the speech the latter for First Amendment protection. The U.S. Supreme Court addressed this succinctly in two cases. Riley v. National Federation of the Blind, 487 U.S. 781, 108 S. Cut. 2667, 101 L. Ed. 2d 669 (1988) (speech was related only to regulating charitable solicitations); Board of Trustees, State Univ. of N. Y. v. Fox, 492 U.S. 469, 474, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989) (speech
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with both commercial and noncommercial elements not intertwined, unless there is legal or practical compulsion to combine them). The highest court in California stated, "[s]peech is commercial in its content if it is likely to influence consumers in their commercial decisions." Kasky, supra, 27 Cal.4th at 969. Google has a belief that its results and PageRank are not commercial. The Court needs to look no further than Google's publicly filed Form 10-K in 2004: "The search for information often involves an interest in commercial information ­ researching a purchase, comparing products and services or actively shopping. We help people find commercial information through our search services and advertising products. (Emphasis added.) With over $3.3 billion in searchled advertising revenues in the U.S. during fiscal 2005, Google is in commerce, not merely gratuitous speech. The search engine as a public forum is intimately linked to the existence and value of Websites on the Internet that are subjected to the presumably automated PageRank from Google. Commercial speech as in the case of PageRank is only entitled to limited First Amendment protection. Rubin v. Coors Brewing Co., 514 U.S. 476, 481-82; 115 S. Ct. 1585; 131 L. Ed. 2d 532 (1995). As explained in section III.B below, when that commercial speech is defamatory, there is no possibility that such speech should shroud or supersede the First Amendment rights of a Website devalued or Blocked at the behest of Google. 4. Violation of Free Speech Rights in California is Properly Pleaded The California Supreme Court has carefully construed grounds on which Plaintiff can assert its right to free speech and do so through a preliminary injunction. Recently, the Ninth Circuit has opined, "The California Constitution is `more protective, definitive and inclusive of rights to expression and speech' that the First Amendment to the United States Constitution. Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, 908, 910, 153 Cal. Rptr. 854, 592 P.2d 341 (1979), aff'd, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980)." Glendale Associates, Ltd., v. N.L.R.B., 347 F.3d 1145 (9th Cir. 2003). After Pruneyard, the California Supreme Court found a state action requirement under the California constitutional free speech clause in Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal.4th 1013, 1025-31, 29 P.3d 797, 111 Cal.Rptr.2d 336 (2001), While this seems to run contrary to the precedent that
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privately-owned, but publicly open shopping centers must offer free speech to visitors, the analysis of free speech does not stop at state action. That is, the absence of a state actor does not resolve the case. Under Golden Gateway, California law requires a court to assess the importance of the public character (not ownership) of the property where speech takes place. "[P]rivate property must be public in character before California's free speech clause may apply. Id. at 1033. After considering Marsh and Logan Plaza, the California Supreme Court concluded: [W]e conclude that the actions of a private property owner constitute state action for purposes of California's free speech clause only if the property is freely and openly accessible to the public. By establishing this threshold requirement for establishing state action, we largely follow the Court of Appeal decisions construing Robins. For example, our Courts of Appeal have consistently held that privately owned medical centers and their parking lots are not functionally equivalent to a traditional public forum for purposes of California's free speech clause because, among other things, they are not freely open to the public. [Citations omitted.] Golden Gateway, 26 Cal.4th at 1033 (emphasis added). The court then found that the defendant tenants' association could not distribute leaflets in the area in question because "Golden Gateway carefully limits access to residential tenants and their invitees." Id. Defendant Google's search engine shows very strong indicia of a public forum or at least a dedicated public forum. It cannot now argue or claim that its engine is not public in character or not "freely open to the public", given all of Google's media coverage, blogs, public statements, and securities disclosures. In its very own words within such disclosures, Google's search engine and index of websites are "freely available to anyone with Internet access." [FACAC, ¶ 22.] Internet access for users is widely available all over cyberspace, including public, government maintained locations as public libraries. ALA, 539 U.S. at 205. Quite literally, any person from any location can use the search engine of Google. There are no fees, qualifications or membership. Google never dictates to the public what how to use or select key words for search. It is without restriction and limits in use or purpose. At the other end of the channel, Google indexes all Websites on the Web, without request or fees with Googlebot. Once a site goes up in the public domain, Google seeks to index it for search engine use. Therefore, the holding of Golden Gateway in California should afford free speech protection under the
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California constitution of KS.com to be included in Google's index and viewable and heard by the public. B. Count Eight, Defamation and Libel, Properly States a Claim for Relief Defamation occurs when a statement made is provably false. In a key commercial speech case, the Supreme Court held that alcoholic content of a beverage was indeed commercial speech entitled to limited First Amendment protection. Rubin, 514 U.S. at 481-82. The Court recognizes a "particular consumer's interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). Despite Google's generous use of the unreported decision of Search King8 and its claim of PageRank as subjective, PageRank is, and always has been, an "automatically generated" number between `0' and `10' based on an algorithm. In the motion, Google seeks to cast PageRank a mere subjective human opinion but that completely belies PageRank's eight-year history. The original U.S. patent (No. 6,285,999 issued on September 4, 2001) behind PageRank states in the claim 1 that it is a "computer implemented method of scoring a plurality of linked documents." The fact that the computation may be complex does not, as a matter of law, make PageRank as to KS.com or any other Website of the Class, according to U.S. Patent No. incapable of factual or mathematical verification. Therefore, the statement by the Search King judge that "PageRanks are opinions"9 falls short of stating that it is impossible to verify accurate PageRank for a given Website. If PageRank was conceived as an patented invention to calculate

Search King, Inc. v. Google Tech., Inc. No. CIV-02-1457, 2003 WL 21464568 (W.D. Okla. 2003) bears only nominal relevance, if any, here. First, it is an unreported and unpublished decision of another court outside the Ninth Circuit, which cannot serve as precedent here. Any findings of fact made from the Western District of Oklahoma in Search King regarding PageRank do not bind this Court's assessment of speech concerning Blockage of Websites or the `0' PageRank here. The Ninth Circuit under Wyatt v. Terhune, 315 F. 3d 1108, 1113-14 (9th Cir. 2002) held that one court may not accept as true the factual findings of another court. Here, the veracity of PageRank is surely in dispute between the parties as a factual matter, and should not lead this Court to simply adopt a factual finding, at least in a Rule 12(b)(6) motion. 9 PageRank, in operation, is the output of a series of computational steps. If the PageRank algorithm yields, for example, a `5', Google should not somehow override that computation by placing a `0' in the PageRank Toolbar for display. As to what a browser or user may think of a `0' or `5' PageRank ­ that is when and where the "opinion" of relative significance of the site emerges. OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF DISMISS FIRST AMENDED COMPLAINT

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the number of hyperlinks among Websites, it is conceivable to verify whether a `0' PageRank for KS.com is indeed the proper result of the PageRank algorithm. That is far different when the Search King judge said that it is not "conceivable" to prove the falsity of "relative significance" of a Website. The judge did not address the calculation of PageRank itself as whole number. When a site has 20,000-plus back links as KS.com has, a PageRank of `0' seems, and indeed is, mathematically impossible. With a declaration disputing Google's factual assertion here on file in the concurrent opposition to Defendant's Anti-SLAPP Motion,10 the motion to dismiss is inappropriate on this count. Nonetheless, even to the uninformed or layperson, with the content appearing on KS.com and the amount of Web traffic earned up to March 2005, a "relative significance" of nothing. A PageRank of `0' for KS.com seems false under any sensible interpretation. Accordingly, the motion cannot as a matter of law establish that plaintiff KSC fails to claim a `0' PageRank for KS.com is both defamatory and libelous. C. Count Nine, Negligent Interference Claim, Properly States a Claim for Relief. Negligent interference is based on the existence of a special duty from Google to Plaintiff KSC and California Subclass II members: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to the defendant's conduct; and (6) the policy of preventing future harm. City & County of San Francisco v. Philip Morris, Inc., 957 F. Supp. 1130, 1143 (N.D. Cal. 1997). "Purely economic loss is recoverable in California, even if there is no privity of contract between the parties," where this "special duty" exists. Id. The key elements for Count Nine here are: "(1) that the defendant undertook to act for the benefit or protection of the plaintiff; (2) that the defendant failed to do so; and (3) that the defendant's breach of the assumed duty either increased the risk of harm to the plaintiff or the plaintiff suffered injury because of reliance on the defendant's undertaking." Id. Plaintiffs' negligent interference claim relates to Blockage of a multitude of Websites.

10

Declaration of Randall McCarley, attached as Exhibit 2, ¶ 4, to Plaintiff's Opposition to Defendant's Special Motion to Strike Pursuant to CCP § 425.16 on file June 9, 2006. OPPOSITION TO DEFENDANT'S MOTION TO Case No. C 06-2057 JF DISMISS FIRST AMENDED COMPLAINT

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FACAC ¶ 174. Naturally, Blockage and censorship of other sites are normally outside of a contract between any given AdSense site and Google. As traffic to certain sites falls or completely drops by the acts of Google, this count properly alleges KSC and Plaintiffs as Class members experienced sudden and ongoing Blockage of their sites. FACAC ¶ 66. Google publicly acknowledges Blockage [FACAC ¶ 64], and is attempting to explore and deal with the problem of Blockage of undeserving Websites [FACAC ¶ 65; Attachment of Matt Cutts Blog to Declaration of Randall McCarley attached as Exhibit 4, to the Preliminary Injunction Motion on file herein.] The purported value of AdSense to a particular site is directly tied to the amount of search engine use and traffic of other sites that refer to and that are back-linked to the AdSense advertising site. "Every day we serve millions of users who know our no-paid-inclusions policy means they're getting totally unbiased results. And the better user experience that Google search offers means your visitors will spend more time on your site and return more often. Google AdSense combines Google's search technology with thousands of keyword advertisers to deliver targeted text-based ads to search result pages. https://www.google.com/adsense/ws-overview (visited June 7, 2006). Negligent interference by Google, then, refers to all of the sites that should regularly and organically lead users, either with Google's search engine, or with click-throughs through a site's link partners. Blockage by Google affecting hundreds of Websites that may not necessarily have a contractual relationship through Websites with AdWords. It is the collective Blockage of sites that link to those sites carrying AdSense ads from Google that constitutes the alleged negligent interference by Google. Affected Websites on the Internet, including those of Class members, are link partners by agreement. Blockage to arbitrarily cut off traffic to these sites is indeed interference. Traffic and referrals through the search engine build up steadily for thousands of sites, and Google and all its advertisers using sponsored links know that. Discovery and proof and harm on Blockage by Google will confirm its interference and harm brought among hundreds of interdependent, linked sites of California Subclass II Class members. For negligent interference, a defendant's conduct is blameworthy if "it was independently
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wrongful apart from the interference itself." Lange v. TIG Ins. Co., 68 Cal. App. 4th 1179, 1187 (1998). Prior to Count Nine, the Amended Complaint alleges eight other counts that Blockage and/or PageRank constitute Federal and state law violations against Plaintiffs. For example, in the factual allegations, Plaintiffs allege that with PageRank and Blockage, Google acted as a monopolist and hurts competitors. FACAC ¶¶ 3, 58. It is therefore unmistakable that "independently wrongful" conduct is present. With the success of any of the eight other counts (including Count One supra and Count Eight infra), then Count Nine should remain intact. D. Counts Two and Three Properly Claim Sherman Act Section 2 Violations. Under the Sherman Act, Plaintiffs have alleged three separate relevant markets for antitrust purposes ­ Search Engine Market, Search Ad Market, and Website Rating Market. Another Federal Circuit has noted that an antitrust plaintiff must sufficiently allege a relevant market with interchangeable substitutes to avoid a 12(b)(6) dismissal. Lee v. Life Ins. Co., 23 F.3d 14, 18-19 (1st Cir. 1994). As to the Search Engine Market and the Search Ad Market, plaintiffs do so. [FACAC ¶¶ 54, 55, 58.] Likewise, for the Website Rating Market, Google's Page Rank is alleged as the most dominant among the methods for ranking a Website. [FACAC ¶ 56.] Count Two of the FACAC asserts attempted monopolization by Google under Section 2 of the Sherman Act, 15 U.S.C. § 2. Three elements are required: (1) specific intent to control prices or destroy competition, (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose, and (3) a dangerous probability of success. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 736 (9th Cir. 1987). Element (1) is satisfied -Plaintiff KSC claims that Google, by its "statements, behavior, conduct, acts, and omissions," demonstrates "specific intent to destroy competition in the Search Engine Market and the Search Ad Market." FACAC ¶ 115. Element (2) is met in that the amended Complaint alleges that Google has engaged in conduct to harm and destroy competition. Id., ¶¶ 118, 121-22. Element (3) is properly alleged ­ Google has the world's largest library of Web content (Id., ¶¶ 26, 34), it has growing market shares and revenues that are unrivalled by competitors (Id., ¶¶ 50-57); and Google is likely to succeed in its goal of a monopolist (Id., ¶ 120).
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In Count Three, Plaintiffs allege that Google as an essential facility violates Section 2 of the Sherman Act. Under this doctrine, the monopolist owns a facility that "cannot reasonably be duplicated and which is essential to competition in a given market a duty to make that facility available to its competitors on a nondiscriminatory basis." Ferguson v. Greater Pocatello Chamber of Commerce, Inc., 848 F.2d 976, 983 (9th Cir. 1988). See also Anaheim v. Southern California Edison Co., 955 F.2d 1373, 1380 (9th Cir. 1992). The elements are (1) the monopolist is in control of an essential facility, (2) the monopolist's competitor is unable reasonably or practically to duplicate the facility, (3) the monopolist has refused to provide the competitor access to the facility and (4) that it is feasible for the monopolist to provide such access. n10 See City of Anaheim v. S. Cal. Edison Co., 955 F.2d 1373, 1380 (9th Cir. 1992). Google is concerned about the viability of the "essential facilities" doctrine used to allege a Section 2 violation. FACAC ¶ 125. But a careful reading of the Supreme Court's opinion in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP, 540, U.S. 398, 124 S. Ct. 872, 157 L. Ed. 2d 823 (2004), suggests otherwise. The "essential facilities" doctrine was presented to the Court dealing with a federal antitrust claim against a telecommunications carrier subject to the Telecommunications Act of 1996 . Although the Court said, "we have never recognized such a doctrine, [citations omitted]," Justice Scalia writing for the majority continued, "and we find no need to recognize it or to repudiate here." Id. at 411 (emphasis added). Indeed, the Court noted that where "essential facilities" is applied, the key requirement is the "unavailability of access" to a channel. The doctrine was not needed to protect competition in Trinko because the petitioner-defendant was in the telecommunications industry, for which Congress provided "forced access" under the 1996 Act. Id. The doctrine of "esse