My open legal battle with “Google Guy”

I didn’t need Google’s approval of OptiLink. They never were able to detect it, or even materially impact my sales, but banning my affiliates? That’s not okay.

During this same time, Bob Massa, the owner of Search King, was suing Google over (essentially) doing “manual overrides” to PageRank, despite it being widely described and promoted as an “algorithm” not subject to human whim. In speaking with Bob, I do think he was arguing the wrong issues, but I also think that he got the attention of some “adult supervision” at Google.

That’s not even a metaphor! I had just entered my 46th year of life and my 16th year as a full time business owner. That made me about twice as old as Google’s founders and about 10 times as experienced in business. Bob had even greater creds than mine.

Calling Google “young and reckless” was in no way an exageration.

They were so naive and unsupervised as to actually admit to actions that were illegal acts. Here’s an excerpt from a real email from Matt Cutts to one of my affiliates:

I can confirm that ***.com and ***.com were removed from our index pending a more full review. Among other things, someone reported your endorsement of a program (Optilink) that clearly violates our Terms of Service; please see http://www.google.com/terms_of_service.html. The use of any programs to access Google without permission is unwelcome.

Oh wait, here’s one more:

Your quote on that page verifies that you’ve violated our Terms of Service (link) by sending programmatic queries to Google. … If you are willing not to use programs that violate our terms of service, we’d be happy to re-instate your domain.

Huh? Which domains? Every one that I own? And how are my domains connected to my use of OptiLink? I don’t use OptiLink from my domain, I use it from my house. The Google ToS governs the use of Google as a searcher. My domains are another matter entirely.

If you want to do the legal deep-dive on this, start with “tying arrangement” and “abuse of market power”. You might just find FTC’s case against Microsoft presented as an example, a lawsuit that even a couple of young computer science students must have heard of.

So should I call the FTC and get a case started? Maybe, but let’s try the court of public opinion first. That turned out to be really effective and cost nothing.

This part of the story starts November 25, 2002. By now, I had already gotten the “green light” from Ray Sidney, followed by his abrupt about face after I suggested he talk to Matt.

Back in the day, there was this poster in WebMasterWorld named “Google Guy”. Thanks to Jim Boykin, the forum trace from late 2002 is still preserved for everyone to enjoy. I’ll hit the highlights, but here’s the link to the whole conversation: https://www.webmasterworld.com/forum3/7164.htm

Of course, I can’t say that it was Matt Cutts that black-balled OptiLink. I also can not say that Matt Cutts was Google Guy. Nor do I have first hand knowledge that Matt Cutts admitted to doing the bannings of my affiliates. You’ll have to gauge the truth of those rumors and third-party allegations for yourself as you read what follows.

In response to a pre-sales question on WMW, a piece of my response included:

Google is currently “conflicted” concerning OptiLink, having taken a stand, retracted, and gone back again, but this is only an issue for people _promoting_ the product and will soon be resolved one way or another anyway.

I guess that was too much for GG because he posted this reply just 2 hours later:

Someone said that “Google is currently “conflicted” concerning OptiLink…”

I think I can solve that conflict. Our Terms of Service do not permit programmatic queries without permission. Someone who uses OptiLink may have their IP addresses banned or their domains removed from our index. It’s that simple.

This stance should be pretty clear from our webmaster guidelines, but I’ll check with folks to make sure that the next time we update our webmaster guidelines, we make it more clear.

Added: just to clarify on one point, Windrose states that “using OptiLink is completely
invisible” to search engines. As always, you may want to take such claims from the creator of a program with a grain of salt. Other people have claimed their programs were completely invisible before, and such claims have also been proven false before.

In all seriousness: please do not use programs to send any automatic queries (of any kind) to Google. Such programs take server resources away that should be used to serve queries to actual searchers.

Of course, that’s just the same B.S. argument I’d already rebutted with Ray Sidney only days earlier, but it bore repeating in public where everyone could see the emperor’s invisible clothing for themselves, so…

Dearest GoogleGuy,

Google’s Terms of Service are at best ambigous. ALL queries are “automated” to the extent that programs are the only means to make queries. IE is an “automated” query. If anyone doubts this, they should try doing one by hand. Or if you can’t figure out how to get your hand stuck into an RJ11 jack, then use telnet. Mechanically that’s less painful, of course telnet is a program (read: automated), but in trying to query Google with nothing but telnet you will soon find out just how much today’s browsers “automate”.

What does Google imagine separates a standard browser, which presumably you would not classify as automated, from programs that you presume the ToS bans? Programs that run unattended or run from server farms might arguably qualify, but what about programs that will not operate w/o the end user pressing the start button from the comfort of his own desk chair? OptiLink does nothing more nor less than fetch the same result page IE does when doing a link query and provides a very similar graphic to the user. This is in some way more automated than IE? A strange notion indeed.

But no more strange than Google’s notion of what constitutes appropriate countermeasures, which in most legal contemplation would be instantly deemed both arbitrary and vindictive. Blocking an IP due to server load, a variation of denial of service, is reasonable and justifyable. But banning an unrelated domain? Or what about banning a site for linking to a banned site? Or banning a domain unrelated to the “offensive software” just because the whois data shows that it is owned by someone having made a public endorsement for said product? What about doing this three times in one month? I suspect that you know first hand that these are more than just theoretical possibilities. Who knows, we might find out through discovery. [emphasis added]

 

We go back and forth a couple times, with GG repeating himself and me being even more pedantic, but this tidbit from page 2 of the thread is worth repeating:

And more than that, the types and extent of counter-measures that can legally be used by a company in response to a violation of a ToS, whether well-formed or not, has also been repeatedly addressed. [emphasis added]

someone suggested here that a violation of the ToS would likely (and by implication correctly) result in banning the ip or complaining to the isp. But wouldn’t it be better to just look up the person in the whois database and ban one or more of their websites? if you said yes, there might actually be a job for you in the search engine industry.

That bit at the end was me having some fun exercising my sarcasm gene, but the bolded stuff is the meat of the issue.

But did any of this really matter?

Hard to tell. John’s site was restored to PR5 a few days before these forum posts and the other banned sites were still clawing their way back into results after taking down their public endorsements of OptiLink.

Bob Massa’s suit went nowhere and I never made an FTC case of this (because I was technically not even damaged!), but there was never a banning of any of my affiliates ever again, for any of my products, so that’s a win, plus John’s endorsement remained on my site for years to come.

As my brand grew, I had close to 100 affiliates and not one of them saw any retribution from Google – even in those cases when the domain name itself had “optilink” in the name!

All I wanted was to be left alone, and they did that. I didn’t expect them to mail an apology. It was enough for me that they stopped being petty and vindictive and instead got back to work improving what was then and still is the best search engine available.

Epilog

Sure, Google was young and stupid back then, but so was I once, so I can’t really begrudge them that.

Ray Sidney is long since gone, and Matt Cutts is “functionally gone”, but is Google really “older and wiser”? Hard to say. They did learn one thing: transparency can trip you up.  So maybe they’re still just as wild and crazy behind their near-absolute opacity.

OptiLink lived on to a ripe old age in software years and died a nearly anonymous death, starved by lack of linking-data to process. While it remained a game-changer for some years, most of that story is boring and routine. It was really the first 6 months of its life that I’ve chronicled in these posts that were exciting and entertaining. I hope you enjoyed the traipse down memory lane as much as I did recounting it.

Have an Optimal Day

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