• by Wendy Davis , Yesterday

An Ohio appellate court rejected former state Attorney General David Yost's bid to revive a lawsuit alleging that Google wrongly gives preferential treatment to its own products and services in search results.

In an opinion issued Monday, the 5th Appellate District of Delaware County ruled that Google is not a "common carrier" -- meaning comparable to a telecom or electric company. If Google were a common carrier, its search results potentially could be subject to regulation.

The ruling comes in a battle dating to 2021, when Yost sued in an attempt to have the company declared a common carrier. He alleged that Google wrongly touts its own products in the results. The complaint referenced a study saying that around 65% of searches on Google desktop and mobile ended without clicks to a different company.

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. (The study, like the lawsuit, pre-dated Google's decision to show artificial intelligence summaries in the search results.)

Delaware County Common Pleas Court Judge James Schuck dismissed Yost's lawsuit last year, ruling that Google didn't meet the state's definition of common carrier because it didn't transport people or property, and because it makes judgment calls when determining search results. Ohio generally defines common carriers as companies that transport people or property, and that say they serve the public without discrimination.

Yost then appealed to the 5th District, which upheld Schuck's ruling.

"Google does not transport the unaltered property of others," 5th District Judge Andrew King wrote in an opinion joined by Craig Baldwin and Robert Montgomery.

"It affirmatively creates a new expressive product, the SRP through discretionary crawling, indexing, ranking, filtering, and formatting," King added, using an acronym for search results page. "This is curation and synthesis, not carriage."

The judges also said common carrier principles were a poor fit for Google's search engine.

"The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments," King wrote.

He added that a contrary ruling could implicate Google's First Amendment right to wield editorial control over its search results.

"The undisputed facts and the state's legal arguments make clear that the core concern underlying this litigation is the regulation of Google's editorial judgments in curating, ranking, and presenting information," he wrote. "This is, at bottom, an attempt to regulate speech."

The dispute drew interest from several outside parties including current vice-president J.D. Vance, who in 2021 -- before his election to public office -- unsuccessfully urged the trial judge to rule against Google.