Courts

runs the business-to-business search engine SourceTool, said Google jacked up ad prices for SourceTool after the company had spiked its traffic through AdWords campaigns. It also claimed Google refused to lower its prices after expensive landing-page changes and intentionally favored some “partners” whose compliance with ranking criteria was downplayed (WID Feb 19/09 p3). The parties disagree over which set of Google AdWords terms and conditions should govern the dispute -- that in effect when Google’s behavior started in mid-2006, not explicitly limiting litigation to its home court of Santa Clara County, Calif., or a revised policy that summer making explicit that location requirement. Both sets bind AdWords customers to accept policy changes made by Google in the future. U.S. District Judge Sidney Stein in New York said the parties agreed the dispute was governed by California law, which allows for a party’s “implied power to terminate or modify a unilateral contract” with some limitations. “The plain language” of both agreements shows TradeComet is bound by the summer revision, Stein said. Second U.S. Circuit Court of Appeals precedent considers a clickwrap agreement, as is used in the AdWords contract, to be “reasonably communicated” to a customer, and Google showed that TradeComet clicked through to accept the revised agreement. Stein said TradeComet’s antitrust allegations “arise out of and relate to” AdWords -- and that condition is specifically provided for in the AdWords contract, in contrast to other contracts with narrower forum-selection clauses. TradeComet similarly can’t show the clause is “unreasonable or unjust,” lacking evidence that Google practiced “selective enforcement” of the clause, he said.