In the law of products liability, a design defect exists when a defect is inherent in the design of the product itself. In a products liability case, a plaintiff can only establish a design defect exists when he proves there is hypothetical alternative design that would be safer that the original design, as economically feasible as the original design [or cheaper], and as practical as the original design, retaining the primary purpose behind the original design despite the changes made.
In the instant case, the defect is certain harmful aspects of the design of the Google search algorithm. Google employees created the search algorithm so that Google search results cannot distinguish legal from illegal sites. While Google might describe making such distinctions as “censorship”, the clear result is that Google drives traffic to illegal sites, frequently illegal sites where Google sells advertising with compensation based on an audience measurement. Despite paying a $500,000,000 fine for driving traffic to illegal drug sites where it sold advertising as well as receiving millions upon millions of takedown notices, Google continues to highly rank illegal sites in search results and suggest search terms in its Autocomplete product such as “buy oxycontin online no prescription cheap”.
The presence of the defect as applied to infringing works is demonstrated by Google’s own Transparency Report. The Report documents Google’s receipt of nearly 20 million takedown notices a month for Google search alone (the Transparency Report does not include YouTube or Blogger–query why those services are not included and they may ). Google acknowledges that these takedown notices are 97% accurate and tacitly acknowledges that it has not received a counternotification. As other commentators have noted, Google actively solicits counternotifications from anything with a pulse, so the absence of counternotifications is significant.
Google has previously acknowledged in Congressional testimony receiving millions of takedown notices annually–before it initiated the Transparency Report.
The design (and therefore the defect) has been present since the inception of Google, and has resulted in Google paying a $500,000,000 fine for promoting the sale of illegal drugs, being implicated in schemes to defraud the public in the sale of various goods, including Olympics tickets, and in promoting human trafficking (such as through the notorious Utoopi sex club “app”). While Google’s “Transparency Report” only includes reports of DMCA notices relating to copyright infringement, one would have to believe given the magnitude of criminal and civil prosecutions against Google around the world not to mention complaints from all manner of public officials (starting with Members of Congress), the scope of the defect is hard to discount.
Given the numerous opportunities for Google to change its algorithm, including the company’s own acknowledgement that it should change its search rankings to at least downlink illegal sites, it is clear that the defect is inherent in the product design.
Hypothetical Alternative Design
Google itself has repeatedly suggested a hypothetical alternative design that would have the effect of downlinking illegal sites or eliminating provocative search terms from Autocomplete (such as the notorious “buy oxycontin online no prescription cheap”). Yet the company has failed to implement this alternative design (which is not really hypothetical other than in the sense that Google say they will implement the alternative, but never seem to do so or do so effectively).
Safer Alternative Design
Just like the iconic exploding gas tank, it is clear that Google’s current product creates an unsafe environment for consumers. From illegal drugs, to human trafficking to copyright infringement, Google is the leading source of criminals making their wares available to unsuspecting consumers. Not only does Google’s advertising of legitimate brands on illegal sites create the veneer of respectability, Google holds itself out to the public as a reliable source of information.
Not only is Google not a reliable source of information, it has paid the largest corporate fine in history for promoting the sale of illegal drugs online and as far as we can determine, continues to do so through a variety of its properties.
Google would like consumers to believe it is not evil–yet as Joseph Califano admonished the company, Google indiscriminately promotes the sale of illegal drugs to minors. Not only is there a safer alternative design, it is in fact the design that the law requires Google to undertake, not to mention its own Non Prosecution Agreement with the United States.
Economically Feasible as the Original Design [or cheaper]
Not only is the fix for the inherent design defect economically feasible, it would likely be cheaper for Google’s stockholders than fighting the continual holding action against criminal prosecutions and civil lawsuits.
Practical as the original design, retains the primary purpose behind the original design despite the changes made
Given that Google itself has suggested but failed to implement design changes to try to correct the defect, they arguably (and probably discoverably) have acknowledged the problem. The Google Drugs Nonprosecution Agreement contains many admissions that acknowledge a set of manifestations of the defect that affect the health and safety of consumers. Google has always acknowledged that they can fix these problems and if anything Google’s dominant market position (or monopoly) continues to be solidified.
Clearly the defect exists, it is inherent in the design of the Google search algorithm itself, Google has itself suggested a hypothetical alternative design that would be safer that the current version of Google search that is clearly economically feasible, if not cheaper, than the status quo, and is as practical and retains the primary–lawful–purpose of Google search as modified.
One reason that Google hasn’t implemented any of the design defect alternatives it has suggested is because it profits Google not to do so–it is confronted by moral hazard at every turn. Like any other free rider, Google will need to bear the cost of the negative externalities of its bad behavior.
A Consumer Protection Issue for States
As it seems likely that Google’s political clout with the US government (if not its own government contracts) will make another drug prosecution by a cooperative law enforcement team unlikely (FDA, IRS, DOJ in the drugs case), it may well fall to State attorneys general to pursue these consumer protection and products liability claims. In doing so, they may well discover wire and mail fraud, money laundering and other RICO predicates, in addition to the more obvious lawbreaking that Google engages in on a daily basis.