• by Wendy Davis , 2 hours ago

Ohio Attorney General David Yost is pressing a state appeals court to revive his lawsuit claiming that Google wrongly preferences its own products and services in the search results.

A trial judge rejected the claim last year and dismissed the case -- effectively ruling that Google is under no obligation to avoid prioritizing its own products or services in search results.

Delaware County Common Pleas Court Judge James Schuck specifically ruled that Google is not a "common carrier" -- meaning comparable to a telecom or electric company -- under Ohio law. If Googe were a common carrier, its search results could be subject to regulation.

Yost's office is now seeking to reverse Schuck's ruling.

"The undisputed facts in this case show that Google ... satisfies every criterion of common carriage," the attorney general argues in papers filed last week with the Ohio Court of Appeals for the 5th District.

Yost adds that Google "holds itself out to the general public as being ready and willing to bring needed information from the vast internet to any user that visits its site and enters a query."

The recent papers come in a lawsuit brought by Yost in 2021 -- years before Google began showing artificial intelligence summaries in the search results.

Yost alleged in the complaint that Google touts its own products in the 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.)

Yost had argued in a request for summary judgment -- meaning a ruling in its favor before trial -- that Google is a common carrier because it's available to all web users, garners ad revenue by transporting information and provides services that concern the public.

Google countered that it doesn't “transport” or people or property, and its search results are individually tailored.

Schuck said in his ruling that Google doesn't meet Ohio's definition of common carrier because it doesn't "transport persons or property for hire."

He based that decision on language in prior opinions by Ohio courts, including a 1943 ruling defining "common carrier" as someone "engaged in the business of transporting persons or property from place to place, for compensation, offering his services to the public generally" and that "undertakes to carry for all people indifferently."

Schuck also said Google isn't a common carrier because makes judgment calls when returning search results.

"A common carrier does not select the person or product it carries; it carries all people and products without regard to who or what they are," Schuck wrote. "Conversely, Google at each stage of the process selects what information users will and will not see."

Yost's office filed its initial appellate brief in November, arguing that the trial judge's definition of common carrier was too narrow.

"The law does not require that goods or products being transported must be physical or tangible to constitute common carriage," Yost's office wrote. "To impress such a requirement upon common carrier law would destroy the ability of common carrier principles to remain relevant as society, technology, and the economy advance."

Google countered that it isn't a common carrier for several reasons -- including that it exercises discretion when returning search results.

"To read the state's brief, one would think a search engine does (or should) simply return every possible non-malicious website that overlaps with a user's query to the limit of its capacity," Google wrote in court papers filed last month. "Such a service would be useless given the vast amount of information in the universe."

The company added: "As courts have repeatedly observed, Google Search is not a 'dumb pipe,' merely connecting users to the internet."

The tech company also argued that imposing common carrier rules on its search engine would violate the First Amendment, noting that the Supreme Court said in a 2024 ruling that tech platforms have a constitutional right to wield control over content on their platforms.

The First Amendment “does not go on leave when social media are involved,” Justice Elena Kagan wrote at the time.

“This Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression -- to 'un-bias' what it thinks biased, rather than to leave such judgments to speakers and their audiences,” she wrote.

Yost counters in his new papers that Google's First Amendment argument is premature.

"It is incorrect to say that the inevitable result of merely labeling Google as a common carrier would be a violation of its rights to free speech," he argues, adding that it's too soon to know whether potential remedies would violate Google's rights.