• by Wendy Davis  @wendyndavis, January 29, 2024

Google is urging a state court judge in Ohio to reject the state government's effort to prohibit the company from prioritizing its services or products in the search results.

In papers filed Friday with Delaware County Common Pleas Court Judge James Schuck, Google argues that its search engine isn't a “common carrier” service under Ohio law -- meaning subject to the same sorts of regulations as railroads or other transportation companies.

“The undisputed facts establish that Google Search is not a common carrier,” the company writes in a motion seeking summary judgment.

“It does not carry or transport anything for hire, and it does not hold itself out as acting 'indifferently,'” the company continues, adding that a ruling against it on this issue would also violate the company's First Amendment right to wield control over its search results.

The company's motion comes in a lawsuit brought in June 2021 by Ohio Attorney General David Yost, who claims Google should be regulated as a “common carrier” because it dominates the online search market.

Yost alleged in his original complaint that Google touts its own products in the search results, and pointed to a study that says around 65% of searches on Google desktop and mobile ended without clicks to a different company.

“Google often presents Google products in enhanced ways in the search results that are designed to capture more clicks, including by integrating other Google business lines -- such as specialized searches -- into the results page,” he alleged. “It does not allow competitors to have similar access, thereby violating its duties as a common carrier.”

Google previously argued the study Yost cited used faulty methodology -- partly because it didn't take into account that search users sometimes seek factual information, such as currency conversions or weather forecasts, as opposed to links to other companies.

Last year Schuck ruled that Yost could attempt to prove that Google Search is a common carrier, but also said it's not clear what impact such a classification would have on the company.

Google and Yost each filed papers on Friday seeking summary judgment. Yost's papers, but not Google's are currently sealed.

Google argues in its motion that it doesn't meet Ohio's definition of common carrier because it doesn't “transport” or “carry” people or their property, and because its search results are individually tailored.

“Google Search's business is to create its own product: in response to each individual user's query, it curates information and fashions a bespoke search results page,” the company writes.

“Google engages in judgment, discretion, and differentiation at every stage of its processes. And by design it treats users differently, including by showing them different results, depending on various factors,” the company argues.

Google adds that a ruling against it would mark an expansion of “common carriage” in ways that could threaten a wide range of companies -- including other web companies like Bing and Yelp, newspapers like The Columbus Dispatch and brick-and-mortar businesses like supermarkets.

“Each is open to the public and provides consumers with information or goods, some of which may be sourced from third parties, just as Google Search does.”

The company also says it has a First Amendment right to exercise editorial judgment over the search results page.

“Just as a newspaper editor must choose what information to include in the paper, what to put on the front page, and in what order, a search engine must decide what information to include in its search results, what to put on the first page of the results, and in what order,” Google contends.

Yost's written argument is expected to be available within two weeks.