I filed a lawsuit on June 19, 2006, against Google Inc., concerning its AdWords search advertising program - the 4-line ads that appear to the right of the results of a Google search (or above the results as a 3-line banner type ad). The alleged geographic market involved (as alleged in my 2nd Amended Complaint dated 4/15/07) is the United States. The service market involved is, I allege, "Search Advertising" and the submarket (or market) of "monetizing the traffic of Community Search Websites" using Search Advertising (or all types of Internet advertising). Community Search Websites are also referred to as "social networking websites". This type of website, where the public puts the information on the website, requires searches to find the deposited information, which is where Google is making $ billions and leaving its competitors to pick up a few dollars that Google has not decide to take for itself.
Google's only serious present competitor until May, 2006 was Yahoo, and during May, 2006 Microsoft/MSN terminated its partnership with Yahoo and started to compete on its own. Thereafter, Yahoo has been losing ground steadily, and is threatened with going out of business; and Microsoft/MSN is unable to compete effectively with Google, with Google a runaway winner, because of its 65 acquisitions to help Google build and maintain its monopoly of search advertising, its attempted monopolization of all internet advertising, and its existing monopolization of monetization of the traffic of social networking websites (which I refer to as "Community Search Websites").
See the New York Post article of November 1, 2007, the date on which I filed my brief on appeal in the 9th Circuit. The New York Post article states "the Internet giant's plan to expand beyond online search by becoming a bigger player in social networking sites". NYPost Article Stating Google Is Expanding its Interests in Social Networking Websites. This is a direct attack on all of its customers, because Google is going to expand its efforts to monetize website traffic, AT THE EXPENSE OF ALL OTHER WEBSITE OWNERS, with Google's monopolizing search advertising system. My lawsuit is to require Google to permit use of Google's monopolistic search advertising system by everyone, on non-discriminatory terms. Read my 2nd Amended Complaint (see link below). Meanwhile, you might be interested in reading my Brief of Appellant, filed on November 1, 2007 in the 9th Circuit Court of Appeals, and the parts of the record referred to in my Brief. Here are the links:
Here are the documents I filed in the Court of Appeals for the 9th Circuit in San Francisco, California on November 1, 2007 and (as to my Reply Brief and Appendix) on December 31, 2007:
At this time (10/03/07), there are 3 important documents for you to review:
I filed a motion for a preliminary injunction, but it was never heard, by the federal courts in New York, San Francisco, or San Jose, California. Google's responsive motion to dismiss in New York, followed by a similar motion in San Jose, California, have been given priority over my motion for a preliminary injunction. On March 9, 2007, Judge Jeremy Fogel in San Jose, California dismissed my 1st Amended Complaint with leave (permission) for me to serve a 2nd Amended Complaint no later than April 16, 2007. I served a 2nd Amended Complaint on April 15, 2007, a copy of which may be seen at 2nd Amended Complaint in Person v. Google.
For the time being, the best way to follow this litigation is to look for documents that I will post from time to time on this website. The first documents have been my summons and complaint, followed by a press release. Then, I posted a copy of my ill-fated preliminary injunction motion.
Then, on February 20, 2007, I filed a copy of my proposed Amended and Supplemental Complaint dated February 19, 2007 with a request for the Court to give me leave to file it. This request was denied.
On March 9, 2007, I appeared in court in San Jose, California at a hearing on Google's motion to dismiss and my request for permission to amend my complaint. Judge Fogel indicated at the outset that he would probably grant leave to amend, which he did in his written decision dated March 16, 2007, giving me 30 days to file an amended complaint.
In his decision, he stated that the relevant market was all internet advertising, not pay-per-click advertising as I had asserted in my original complaint.
In my 2nd Amended Complaint, I substantially revised the entire complaint by deleting all 15 different causes of action and included only claims under Section 2 of the Sherman Act, for monopolization or a combination to monopolize, or (alternatively) an attempt to monopolize, the above described "markets". The alternative market was defined to include all Internet advertising. The main difference between my earlier complaint(s) and my 2nd Amended Complaint is that in the latter I featured all 65 acquisitions by Google of competitors and technology companies (giving Google important patents, know-how, copyrights, software, technology and people) to combined with Google to make Google the most efficient corporation in the world, and growing. Can you imagine, for those of you in business, a cost of sale of 8%, and presumably decreasing with each acquisition.
For those of you who are interested, Google has built a business of creating, obtaining and building websites and monetizing the website traffic. We're talking about many billions of dollars, soon to become trillions of Google dollars. Some examples of Google's work: $900,000,000 to Ruppert Murdoch for the privilege of placing Google AdWords ads on MySpace.com for 3.5 years; $1 billion to Time-Warner's AOL.com for a 5% ownership interest and the right to place Google ads before aol.com website visitors; $1.65 billion to the two guys that had an idea that the public would like to upload their home videos and publish them free on an internet website - the Google YouTube.com acquisition.
Wouldn't it be great if you or I could convert our website traffic on a proportionate basis to the same kind of money?
In my 2nd Amended Complaint, I'm seeking this right, on a reasonable, non-discriminatory basis. I want to use Google's monopolistic facility to be able to compete with Google in the creation and purchase of websites, the building of traffic for these websites, and the monetizing of the website traffic I buy or create, and to do so at the monopolistic rate of monetizing being obtained by Google, which is probably two to twenty times (or even 1,000 or more times) the amount or rate enjoyed by anyone else trying to compete in the same website-traffic monetizing market. I invite you to read my 2nd Amended Complaint, so you can understand why websites are unprofitable, unless website owners are able to let Google run Google's AdWords search advertising (rather than AdSense context advertising) on their websites in exchange for a reasonable, non-discriminatory percentage of the revenues (which I estimate or guess is about 60%-70%).
A copy of my earlier proposed amended and supplemental complaint can be seen in its two parts (part 1 is for pages 1-50, and part 2 is for pages 51-97 of the document). Here are the links to the two files: Proposed Amended/Supplemental Complaint in Person v. Google, Part 1 - pages 1-50 and Proposed Amended/Supplemental Complaint in Person v. Google, Part 2 - pages 51-97.
Google's monopoly on storing and retrieving information has enabled them to build and use this platform for the monetizing of website traffic, and with that unique capability Google is able to outbid anyone for acquisition of websites and their traffic (such as YouTube.com), or license a site to place Google ads on the website without actually purchasing the website (such as with MySpace.com and AOL.com) and the instances admitted by Google in its registration statement with the Securities and Exchange Commission that Google sometimes pays out more to a website for placing AdSense context ads on the website than Google takes in for sale of such ads. To me, this clearly is giving the website a portion of Google's AdWords income from search ads run on such sites, which shows how Google is partially monetizing the website traffic of some favored websites. I would like my 10 (developing) Community Search Websites to be favored, as well..
There is no reason to believe that in due course Google won't buy craigslist.com, wikipedia.org, ebay.com, aol.com (as to the 95% it doesn't now own), or the institutions that own such properties, including Time-Warner, Fox Interactive Media, NBC (currently rumored to be for sale), ABC (also available for sale), Disney, Viacom or other owner of entertainment-type copyrights which Google can exploit even more profitably through paid advertising while giving away the copyrighted entertainment for free on YouTube or other site owned by Google. Also, the nation's newspapers, having been severely crippled by the combination of Google and craigslist, should not disregard the ominous fact that a combination of Google and craigslist would put Google in a greater position than Google now has to purchase many or most of the nation's major daily newspapers for a song, and be able to exploit their years of creation of copyrighted material.
The major media have to come to grips with this problem, of whether their copyrighted music, movies, TV shows, and newspaper archives can be better exploited by giving them away and selling advertising to the listeners/viewers, or stopping Google from its current exploitation of songs, movies, TV shows, newspaper articles through YouTube and other websites (including Google's own competing video website) by demanding removal of the copyrighted material from Google's websites, at the risk of losing their page rank needed to maintain their website traffic, as they attempt to shift their business structures from bricks and mortar to digital and web.
On Wednesday, February 21, 2007, the Wall Street Journal in its lead story entitled "Reception Problems - TV Industry Clouds Google's Video Vision - Tensions Are Rising Over YouTube Postings; CBS Talks Go Off Track", by Kevin J. Delaney and Matthew Karnitschnig," stated that NBC, CBS and Viacom are resisting Google's efforts to turn their copyrighted songs, movies and TV programs into monetized website traffic and have demanded that Google remove their copyrighted properties. Google's use of copyrighted website text is not the same as TV programming, according to these major producers and owners of copyrighted music, TV programs and movies. We are not so sure, they are saying to Google, that we want to have you turn our years of copyrighted work into free website traffic for you to exploit. Make us a good enough offer and we'll consider turning over our copyrighted material to you - in fact make us an offer similar to the $900,000,000 you just made to Murdoch Rupport for Google's 3.5 year use to place AdWords ads on Murdoch's MySpace.com property, or just acquire us (like you did the competing, upstart, penniless YouTube, Inc. for $1.65 billion) but pay us substantially more, and we'll turn over our valuable properties to you.
In fact, this is what everyone is going to be doing from now on: wait for Google to either buy them (in hopefully a YouTube.com type transaction), license them (in hopefully a MySpace.com transaction) or be put out of business while Google passes them by to focus on other, less expensive properties, because Google is the only real buyer in town, with unlimited money and stock price based on its monopoly of converting website traffic into money - or to put it another way, Google's unique ability to turn Internet water into gold!
My 2nd Amended Complaint is asking the federal court to declare that Google's business of monetizing website traffic is an "Essential Facility" and has to be made available to me, Viacom, AOL, Time-Warner, CBS, NBC, Kinderstart and all other Community Search Website developers and owners on a reasonable, non-discriminatory basis, to enable all such website owners and developers to be able to monetize the traffic on their competing websites on a competitive basis.
If you would like to talk about this problem, please give me (Carl E. Person, antitrust attorney and the plaintiff Pro Se against Google in the lawsuit) a call, at 212-307-4444 or my cell telephone at 917-453-9376.
Eric Goldman, who explains in his website www.ericgoldman.org why he changed his name from Eric Schlachter, is a very energetic blogger, seeking to make a name for himself by taking a legal position in active lawsuits [and trying personally to affect their outcome through misleading, unlawyerly and ignorant blogging], including my lawsuit against Google, and Kinderstart's lawsuit against Google. He seems to have some strong feelings about Google, especially since Google's lawyers in my case are one of the 10 law firms that financed Eric Goldman's new position, as head of the High Tech Law Institute. Mr. Goldman himself is not high tech, but what does that matter? If you call someone "high tech" often enough the person becomes "high tech" in the minds of mindless readers.
Because of repeated unkind, unlawyerly like statements about Kinderstart and me and our two cases in Goldman's blogs, I started looking into what could be motivating him to be so allied with Google and I found that Goldman has never (apparently, according to my comprehensive legal research) been identified as a party or a lawyer for a party in any reported decision, federal or state. That's interesting. Where is his alleged expertise coming from to comment so viciously on pending litigation against Google? What relationship does he have with Google or Google's lawyers?
In his 2/23/07 amicus brief submitted on behalf of Google in the 2nd Circuit Court of Appeals (together with 17 other "amici"), Goldman (or whoever wrote the amicus brief for him) stated that Goldman has not been paid by Google or Google's lawyers and has no interest other than the noble purposes stated. Yes, he at the least is receiving income from Google through the running of Google-sponsored ads on his website, www.ericgoldman.org. Hmmmm! I wonder what else he's not disclosing to the 2nd Circuit. So I took a thorough look, and reported what I found to the other amici, who apparently had no idea about these facts I uncovered about Goldman. Here is a copy of my email to the other amici in Rescuecom.com v. Google Inc.:
----- Original Message -----
From: Carl E. Person
To: email@example.com ; firstname.lastname@example.org ; email@example.com ; firstname.lastname@example.org ;
email@example.com ; firstname.lastname@example.org ; email@example.com ; firstname.lastname@example.org ;
email@example.com ; firstname.lastname@example.org ; email@example.com ; firstname.lastname@example.org ;
email@example.com ; firstname.lastname@example.org ; email@example.com
Cc: Carl E. Person
Sent: Tuesday, March 20, 2007 8:54 PM
Subject: My Opinion Is that Eric Goldman is an undisclosed paid shill for Google - Here's the basis for my opinion.
I’m writing a letter to you to describe the activities of your associate, Eric Goldman, Director of the Santa Clara University’s High Tech Law Center and someone who teaches 3 credit hours per semester at the Law School for the same University.
You’ll never believe, but he showed up – personally – in the federal courtroom in San Jose, California, to listen to what he thought was supposed to be an argument on Google’s motion to dismiss my case. In fact, there was little that resembled an argument. The session with Judge Fogel started off with Judge Fogel saying he was going to allow me to amend my complaint.
Let me show you Mr. Goldman’s biased report:
March 20, 2007
Person v. Google Dismissed (with leave to amend)
By Eric Goldman
Person v. Google, C 06-7297 JF (RS) (N.D. Cal. Mar. 16, 2007)
As expected, Judge Fogel dismissed Person's antitrust lawsuit against Google but gave Person one more chance to refile a complaint. It would be foolish for him to do so, but he hasn't shown a great deal of litigation savvy to date. Sadly, this probably means one more futile round before Judge Fogel puts a stop to this nonsense.
The most interesting part of the opinion relates to the judge's definition of the "relevant market" for antitrust purposes. The judge rightly rejects the argument that the relevant market is search engine keyword-triggered advertising; instead, he defines it as "Internet advertising" generally. I think this is clearly right because advertisers are fairly willing to substitute between Internet advertising options so long as they deliver good value. However, by defining the market so broadly, the judge has implicitly thwarted attempts to declare Google a monopolist in its ad business--Google is a major player in the search keyword ad business, but it has a comparatively small slice of the overall online advertising pie.
[Note by Carl E. Person: During 2004, Mr. Goldman seemed to be of a different mind about pay-per-click advertising: “New search engine and software technologies have created a multi-billion dollar online keyword advertising industry.” Mr. Goldman used these words to start off his description of a paid program to which he was trying to get persons to attend on August 8, 2004. The program was entitled Search Engines, Adware and Trademark Law: What Your Clients Can Do and Can’t Do in Online Advertising. I guess with Google financing of one’s professional life one has to change his/her beliefs.]
Mr. Goldman is not a qualified commentator, but fails to tell anyone that. His “reporting” appears to be paid lobbying on behalf of Google, with the added job of lining up qualified persons such as yourself to add support to his amicus briefs filed on behalf of Google. Oh! Were you aware that he has filed other briefs on behalf of Google? He has only filed 3 amicus briefs in his life, from what I can see (looking at all federal and state reported decisions, but there could be other briefs for Google I have missed). Two of the 3 amicus briefs were filed after he received his appointment as head of the High Tech Law Institute starting in August, 2006.
Did you know that 2 of Google’s California law firms (giant Wilson Sonsini Goodrich Rosati and giant Cooley Godward LLP - where Goldman was employed at one time) are leaders among the 10 law firms that are said to have financed Goldman’s High Tech Law Institute – in other words, Google’s attorneys (including the attorneys representing Google in my case, who obviously invited Mr. Goldman to attend my hearing, which he did) are paying Mr. Goldman his salary to be a shill for Google and to line up qualified professors such as yourself to sign on with what he (or Google’s lawyers) write on behalf of Google.
Goldman’s first amicus brief (filed when he was teaching at Marquette) was filed during early 2005 [in the 2nd Circuit Court of Appeals in New York] in 1-800 Contracts Inc. v. WhenU.com, Inc.. Goldman filed this amicus brief together with other filers: including (1) Google itself; and (2) SF-based Electronic Frontier Foundation (which I’m guessing is also a recipient of Google funding one way or another). They filed their respective amicus briefs in favor of reversing the District Court’s preliminary injunction prohibiting pop-ups upon screen appearance of a website. The decision was reversed by the 2nd Circuit. Isn’t it strange how one gets his or her start in life in the filing of amicus briefs, being able to do it jointly with Google from the very start. Not a bad way to introduce your services to a new client!
Mr. Goldman’s second effort was also filed (on 9/12/06) in New York, several months after I filed (during 6/06) my lawsuit in New York against Google. Mr. Goldman together with one David Post filed an order to show cause through one of leading law firms in the nation, McCarter & English (who probably represents Google from time to time). This mission by Mr. Goldman was to get the state courts to uphold a clickwrap agreement, right at the time that my action in New York involved the legality of Google’s clickwrap agreement, as a result of which during this same period Google was changing its AdWords clickwrap agreement and required every AdWords user to click in assent to Google’s newest version – all during this period. It’s amazing how Mr. Goldman keeps up to date on Google’s legal problems, almost as if he is directed to appear on Google’s behalf when needed (and hopefully to bring in you and his other "associates"). This second amicus case for Goldman is entitled People (Attorney General Eliot Spitzer] v DirectRevenueLLC. I’ll email you pdf copies of these first two amic briefs upon request.
The third instance, surprise, surprise, also involves Google, the one Mr. Goldman filed on behalf of you (as amici) and Google as the beneficiary of Mr. Goldman’s unbiased thinking, presumably.
Getting back to Mr. Goldman, with whom you appeared in his recent amicus brief presumably prepared by him (or Google’s law firm) in Rescue.com v. Google Inc.
You may not be aware of Mr. Goldman’s legal background. Aside from teaching a few months in various law schools at different parts of the country, he does not seem to have a single reported decision in the United States, federal or state, in which he was a party or a lawyer for a party. Thus, he is hardly someone who you could depend on to write an amicus brief in your name. He appears to have no litigation experience whatsoever (under his current name Eric Goldman or his prior name Eric Schlachter), other than his appearance in Federal Court the other day, at the invitation of Google, presumably. I didn’t invite Mr. Goldman.
Secondly, he does not claim to have any antitrust expertise and has never taught any antitrust law, as far as I can see. I have spent 40 years in antitrust litigation and have been involved in many antitrust lawsuits.
His position as Director of High Tech Law Institute appears to be paid by Google and/or Google’s main law firms, with Mr. Goldman hardly earning a living as a part-time instructor (3 credits per semester).
DISCLOSURE TO THE COURTS ABOUT MR. GOLDMAN’S INTEREST
Here is the main point for communicating with you. Mr. Goldman and you, as professionals lending your name to Mr. Goldman’s activities, have represented to the court (the 2nd Circuit Court of Appeals) as follows:
I.. STATEMENT OF INTEREST
Amici are 18 faculty members at American law schools who teach, write about, or have a scholarly interest in trademark law. None of the amici received any compensation for preparing this brief, and none has any stake in the outcome of this case. Amici’s sole interest in this case is in promoting traditional goals of trademark law, including providing information that reduces consumer search costs and improves consumer decision-making. [p. 1 of amicus brief filed 2/22/07]
[Note: Goldman made a similar representation to the Court in at least one of the other 2 amicus briefs above.]
It is my opinion, based on the foregoing, that the part of the statement in bold above is not applicable to Mr. Goldman, and that you Mr. Goldman did not advise you about this.
I am letting you know about this situation because I see how Mr. Goldman works. He seems to be preparing to insert himself in my case through the filing of one or more amicus briefs.
If I were you, I would ask Mr. Goldman to answer for you each of the following questions:
1..Who actually wrote the amicus brief that bears your name as one of the 18 amici;
2..Please list everyone who read the brief at any stage before it was filed.
3..Who paid for the printing of the brief? Did Mr. Goldman? Shouldn’t payment by someone other than Mr. Goldman be disclosed? “Job # 206879” on page 20 of the 21 page amicus brief indicates it was done by a major financial printer, in New York, and actually mailed from New York because of the New York notary public “Robin M. Zuckerman”. Was a law firm paid to write and circulate the brief and arrange for its printing? Shouldn’t this be disclosed to the 2nd Circuit, that the group of 18 professors did not pass a hat and pay for any of this themselves.
4..Mr. Goldman, have you ever filed an amicus brief other than the 3 described above?
5..What Google attorneys, employees, officers, in-house counsel or Wilson, Sonsini or Cooley Godward attorneys or employees have you spoken with concerning this brief?
6..Did Google or Wilson, Sonsini, Cooley Godward or other attorney for Google recommend you for your position at the High Tech Law Institute.
7..What makes you, Mr. Goldman, “high tech”?
8..What is the total funding of your High Tech Law Institute for the current year starting in August, 2006, and how much of this was contributed by Google? By Wilson, Sonsini or any of its parners, or Cooley Godward or any of its partners, or any other attorneys for Google?
9..Were you expected to file amicus briefs for clients of Wilson Sonsini or Google upon request, as part of your duties.
10..Is the High Tech Law Institute a non-profit organization?
11.. Were the contributions tax deductible?
12.. Did the High Tech Law Institute pay for the amicus brief in any way?
13.. How much time did you devote to the writing of the brief.
14.. How did you do legal research for the amicus brief? Are you or the High Tech Law Institute a subscriber to Lexis, Westlaw or any similar service? Or did you use the Lexis-Nexis or Westlaw facilities of the law school at which you are a 3-hour per semester instructor?
15.. Did you ever consider disclosing any of your relationships with Google and Wilson, Sonsini and Cooley Godward in the Statement quoted above?
16.. Who actually wrote the statement? Did you, Mr. Goldman?
17.. How many times have you spoken with Wilson, Sonsini or Google about Carl E. Person’s lawsuit against Google? Have you ever spoken with Carl E. Person to get his side of the issue? Why not?
18.. Aren’t you making predictions about case outcome to your students regarding the Kinderstart and Person lawsuits against Google? In fact, aren’t you providing substantial materials about the Kinderstart case to your class for downloading by them? Aren’t you making predictions to them about the outcome of these two cases? Aren’t you involved in trying to sabotage both cases (and affect the outcome) by your prejudicial blog activities? Isn’t this effort by you to affect the outcome of these two cases designed to make your predictions give you a reputation for being able to pick winners, and thereby get a full-time job teaching somewhere?
19.. Mr. Goldman, how are you earning a living? By your 3-hours of teaching per semester; by your misleading blogging activities; by acting as a shill for Google?
You might conclude by stating to Mr. Goldman: “Please advise ASAP, because I may want to advise the 2nd Circuit to remove my name from the amicus brief.”
Carl E. Person
Candidate for Attorney General in New York during 2006
And an abused AdWords customer.
If you are interested in seeing the proposed amended complaint I provided to Judge Foley (and which I have agreed with Judge Foley in Goldman’s silent presence) that I would shorten and simplify, click on http://www.lawmall.com/google/C_06-7297_Ex_E_Prop_Am_Supp_Comp(1-50)3.pdf for the first half of the document and http://www.lawmall.com/google/C_06-7297_Ex_E_Prop_Am_Supp_Comp(51-97)3.pdf for the second half of the document.
You might read my reasons why pay-per-click advertising is a market, and that Google dominates such market. Goldman, as a shill, really doesn’t have much information or insight to contribute. There is no guarantee that I’m correct, but I have spent 40 years in this field and cannot accept a shill’s drivel.
Carl E. Person
Here are the documents in my Google lawsuit:
LITIGATION UPDATE: Preliminary Injunction Motion Served 6/26/06
2nd Amended Complaint dated 4/15/07
My contact information: Cell is most immediate: 917-453-9376
Ofc tel sometimes (days or weekends, days and even nights, but not all the time) 212-307-4444
Carl E. Person
325 W. 45th St. - Suite 201 (betw/ 8th & 9th Aves.)
New York NY 10036-3803
Prepared by attorney Carl E. Person. For his c.v. or resume, click on Carl E. Person C.V.
If you have any questions, please call Carl Person at 212-307-4444, fax
him at 212-307-0247, or email him at