When I met with Yahoo earlier this week to hear about it I received the now familiar speech that Yahoo is still very much in search and continuing to “innovate” around the UI and UX. There have been some interesting efforts along those lines on the PC in the past (Yahoo Search Direct), but Axis actually is genuinely different and noteworthy.

Three screen experience

Axis is available for all three screens: PC (as a browser plug-in), the iPad and the iPhone (as apps). Android is coming.

Axis is a fully functional browser that syncs content across all screens if users are signed in. Like other browsers Axis features tabs and book marks and can render any web page.

On the PC it functions more as a “companion” search bar at the bottom of the page on each of the major browsers: IE, Chrome and Firefox. Below is an example of how it looks on Chrome in the context of a search for “Hawaiian vacations.” I’ve got the standard Google results and then Axis results horizontally across the bottom of the screen:

It doesn’t automatically insert or mirror the query you’ve done on Google or Bing or launch the module you see above. You have to manually enter the query at the bottom of the page. Then it offers a visual preview (live pages) of the top ranked sites. The ranking of these sites is somewhat different than conventional Yahoo search results. Clicks and time on the underlying sites are factored into the ranking of these Axis results.

Users can then horizontally scroll through results rather than clicking back and forth on links. These images run for the equivalent of the first two pages of search results and then you get text and descriptions. However Yahoo suggested that most people aren’t going to go beyond a page or two of results anyway. My sense is that people will horizontally scroll for “longer” than vertically.

While this PC experience is useful and provides a kind of secondary or back-up search capability, Axis is ultimately about delivering a better, mobile-optimized search experience that completely eliminates the “10 blue links.”

Getting rid of blue links

Yahoo special products director Ethan Batraski said that Yahoo was trying to get rid of the interim “second page” of search results (the list of links) and go right from the query to the web results in “one step.”

There have been other PC search engines and mobile apps to present visual results rather than links, most recently in mobile by Do@ (now Everything.me). All of those essentially failed. But Yahoo has the advantage of scale and greater visibility than any of the visual search startups that came before.

Whenever you’re on a specific website, you can pull down the page and see the horizontal bar of search results. It’s always there in the background. Touching another image loads that page but the search results remain in the background and accessible until you do a new query. You’re not hitting the back button to return to search results.

This functionality works relatively well on the iPhone (especially image search) but it really is best shown on tablets (iPad only for the moment). The larger screen enables the visual nature of Axis to shine.

There’s also a personalized home page with bookmarks and saved articles that carries across screens when signed in. Users can sign in with Yahoo, Google or Facebook log-in credentials to access the capability.

About the “Axis” name

I asked Yahoo about the name “Axis,” which I said reminded me of World War II. They responded that they went through many names and there are “negative connotations” to others as well, including Chrome and Safari (though not many readily come to mind). Another interesting element here is the black aesthetic.

Yahoo has done market testing and sees an opening with young, affluent early adopter males. (Perhaps the “Spike TV” crowd.) Jokes aside, the company is seeking to cultivate new audiences with Axis and the edgier image is part of that effort. It struck me a bit like a sports team adopting tougher-looking uniforms and colors.

Yahoo went to some length with me and in the press materials to underscore that there’s innovative technology on the back end behind Axis:

Axis is built upon the Yahoo! Cocktails mobile development platform, which is designed for creating deeply personalized products that are built for connected devices first. Comprised of Mojito, an open source JavaScript MVC framework and Manhattan, a cloud-based hosted environment, Cocktails is a blend of open, standard web technologies including HTML5, CSS3, JavaScript and Node.JS.

Differentiated but will it “move the needle”?

Doing my best Walt Mossberg, I can say that after using it for several days on both the iPhone and iPad, and to a lesser degree, on the PC I think Yahoo has created a useful and differentiated mobile search experience. The syncing and multi-screen capability are also useful, although not unique.

Search Direct is the mother/father of this experience. And if it “takes” we may see traditional Yahoo search on the PC incorporate some or many of these UI/UX features and elements. That very much remains to be seen and is contingent on the success of Axis.

There will inevitably be questions like, “Will it move the needle for Yahoo?”

I don’t know. It depends on how aggressively Yahoo promotes Axis, how many people try it out and how many continue to use it. However I don’t think we’ll see any dramatic change in user behavior in the near term. But it does put some additional UI pressure on Google in mobile search, which just released a new version of its iPhone app today.

There are no ads for now. But one can easily imagine display ads showing up among the visual search results in the not too distant future. Yahoo wants to build an audience before it starts inserting ads, however.

Because Axis is quite distinct from the traditional PC and mobile search experience some will like it but some may find it too foreign. However I would encourage you to try it. It’s definitely worth a test drive.

See also related coverage from around the web on this topic from Techmeme.

Almunia acknowledges Google’s prior statements about a willingness to settle and suggests that if a settlement can be reached Europe and Google will be able to put the matter behind them:

I believe that these fast-moving markets would particularly benefit from a quick resolution of the competition issues identified. Restoring competition swiftly to the benefit of users at an early stage is always preferable to lengthy proceedings, although these sometimes become indispensable to competition enforcement

Almunia clearly doesn’t want years of litigation and he’s banking that Google doesn’t either. I’m not an antitrust expert and even less familiar with European antitrust law.  However it’s not clear that Europe has a conclusive case against the company. It is clear, however, that the European legal system is somewhat more sympathetic than US law to the various antitrust arguments against Google (e.g., search neutrality).

The four areas of “concern”

Here are the four areas of concern from Almunia that involve a potential “abuse” of market power by Google:

1. Almunia does buy into the “search bias” or “search neutrality” idea. He says, “In general search results, Google displays links to its own vertical search services differently than it does for links to competitors. We are concerned that this may result in preferential treatment compared to those of competing services, which may be hurt as a consequence.”
2. The second area concerns Google indexing reviews that “it uses in its own offerings” (e.g., Places). Almunia characterizes this as plagiarism of a sort: “Google may be copying original material from the websites of its competitors such as user reviews and using that material on its own sites without their prior authorisation. In this way they are appropriating the benefits of the investments of competitors.”
3. If I understood it correctly, the third area of “abuse” involves AdSense: “The agreements [with publishers displaying Google ads] result in de facto exclusivity requiring them to obtain all or most of their requirements of search advertisements from Google, thus shutting out competing providers of search advertising intermediation services.”
4. The fourth area is one that Microsoft has been arguing for some time. This involves the “portability” of ad campaigns from AdWords to adCenter: “We are concerned that Google imposes contractual restrictions on software developers which prevent them from offering tools that allow the seamless transfer of search advertising campaigns across AdWords and other platforms for search advertising.”

Anti-Google lobbying group FairSearch.org welcomed these findings. It issued an upbeat statement attributed to its European attorney Thomas Vinje:

Today’s statement by European Commission Vice President Joaquín Almunia, identifying four concerns where Google business practices may be considered as abuses of dominance in violation of competition and consumer protection laws, is a welcome development. We are pleased that Commissioner Almunia’s investigation has validated the concern that FairSearch members and many other businesses and consumer advocates have raised about Google’s practices that distort the free market and deprive consumers of the transparency and real choice that only results from competitive markets.

As for Google, it gave us this statement:

We’ve only just started to look through the Commission’s arguments. We disagree with the conclusions but we’re happy to discuss any concerns they might have. Competition on the web has increased dramatically in the last 2 years since the Commission started looking at this and the competitive pressures Google faces are tremendous. Innovation online has never been greater.

Some matters more easily resolved

Google can relatively easily address items 3 & 4 above on the list. These are largely contractual issues and don’t implicate Google’s presentation of search results. Number 2 above also appears relatively easy to resolve. Google can refrain from indexing third party reviews for display in its vertical services (and general search results if necessary).

It does raise a question, however, about whether Google would need to obtain authorization to index other kinds of content ahead of time. Google would have to agree to all of this of course.

A more difficult issue is the first item, where Google is being asked not to display its own “vertical” content (think Maps) in a way that’s more elaborate or otherwise different than competitors’ products. This goes to Google’s ability to innovate with its UI and could have very broad implications for “universal search” and its subsequent iterations (SPYW, knowledge graph, etc). This is the potential stumbling block for any early resolution and the issue that could prevent a complete settlement of the case.

Settlement might not happen across the board

If Google and the European Commission fail to reach a settlement across all areas, it’s not clear to me whether it has the immediate power to start imposing fines or would have to successfully litigate against Google — as the FTC would in the US. While in the US the FTC only has access to “injunctive relief” (non-monetary remedies), the European Commission can impose financial penalties of up to 10 percent of a company’s annual global revenue. In this case that would about to nearly $4 billion.

Both the European Commission and Google have clear incentives to settle. The question is what will they do about the “search neutrality” issue (#1 above)?

Postscript From Danny Sullivan: I’m in agreement with Greg’s analysis here. It’s difficult to see how Google is supposed to resolve the first issue, especially when Bing and Yahoo have done exactly the same things with their vertical search results. For more about this, see:

• Dear Congress: It’s Not OK Not To Know How Search Engines Work, Either
• Bing’s Travel Search & Kayak Favoritism Angers No One, While Google’s Gets Headline Attention From WSJ

However, it could be that if Google agrees to settle over the other concerns, the EU will suddenly discover that the first point is no longer a worrisome issue. Alternatively, I’ve found governments around the world seem to have some fundamental misunderstandings of how search works. Given this, Google could provide some token agreement that makes the EU believe the “problem” here is solved.

It’s also important to note there’s not a fifth finding — that ad spend had any impact on search results. That was one of the questions that the EU raised during its “fishing expedition” survey last year. Clearly it didn’t find enough evidence to raise this as a fifth point to resolve.

Like Greg, I tend to view this letter as a sign of weakness, that the EU isn’t sure that it has a strong enough case to win, so telling Google what its concerns are, and getting back some promises of resolution of any type might allow it to move on.

The report was written by lawyers from the Ammori Group, “a law firm and Internet-law consulting practice whose clients include Google Inc.”

A Shrewd “PR Campaign” by Google

Last week a report by UCLA Law Professor Eugene Volokh literally made the case that the US First Amendment precludes any claim against Google under antitrust law. That document was structured and read like a formal brief submitted to a court. However the court in this instance is the “court of public opinion” where the “public” consists of policy makers, regulators and legislators.

Google is engaged in what appears to be a very sophisticated and shrewd PR campaign, having lawyers preemptively argue the antitrust issues in public and thereby alert those who would bring formal antitrust claims that their cases are all but sure to fail.

It’s akin to an athlete trying to “psych out” an opponent before a big match. The initiative is intended to create doubt (and fear) among those lawyers who would be on the other side that they risk failure by proceeding against Google. This is not to imply that the substantive legal arguments presented are not persuasive — they are. That’s the point.

If You Can’t Compete … Litigate

The lengthy new document by attorneys Marvin Ammori and Luke Pelican takes principal aim at two related targets: the notion that the public would benefit in any way through regulation of Google and critics’ potential antitrust remedies. It essentially says that Google’s critics are all self-interested competitors arguing the public interest to benefit themselves. However antitrust law doesn’t protect the interests of individual competitors but competition generally to safeguard the public interest:

This article concludes that the cures proposed by the competitors are worse than Google’s alleged disease. The proposed remedies might benefit the short-­term economic of Google’s competitors . . . but benefiting competitors is not the goal of antitrust law. The goal of antitrust law is to promote consumer welfare, competition, and innovation. The proposed remedies, however, would do the opposite: harm consumers, impede competition, and stifle innovation.

The remedies would invite government agencies and technical committees to second-­guess and evaluate both mundane and game-­changing engineering and user-­ interface decisions regarding Google Search, reverse long-­standing fair use principles rooted in constitutional requirements, and empower competitors to litigate rather than compete against daily innovations and disclosures by Google.

Dismantling the Remedies One by One

Using case law and public policy arguments, the Ammori report then lays out and seeks to dismantle each of Google’s critic’s would-be remedies, which the document groups under five headings. Here they are verbatim:

• Search Neutrality: inviting government to second-­guess and reject algorithmic and manual changes to Google Search based on an elusive, ill-defined “neutrality” concept that neither agencies nor technical committees could effectively adjudicate.
• Ten Blue Links, not Universal Search: forbidding Google from presenting answers to search queries as both Google and its largest competitors have done since 2007, with results that deliver a mix of Web links, news links, places, maps, and images, rather than merely providing 10 blue links to Web sites, just as many search engines did years ago.
• Google-­Specific Fair-­Use Limits: forbidding Google from crawling and using others’ Web content while forcing Google to let others crawl and use Google’s content thereby inverting the fair-use doctrine, the trespass-­to-­chattels doctrine, and raising constitutional concerns.
• No Bidding: constraining Google’s ability to compete for acquisitions and exclusive partnerships, harming acquisition targets and consumers while favoring the most deep-­pocketed competitors.
• Continuous Disclosure: requiring numerous ongoing disclosures, many of which Google already provides, and others that would enable spammers to manipulate Google’s search algorithms or empower its less innovative competitors merely to copy new Google products more rapidly.

Regulators Don’t Use “Scarce Resources” on Google

The report begins and concludes with the notion that it’s ultimately a waste of time and scarce resources for regulators (in the US) to pursue an antitrust case against Google:

In short, the FTC has better uses for its scarce resources than pursuing an inquiry or investigation that would merely raise the cost of one rival, Google, for the benefit of other rivals that have proposed unworkable and detrimental remedies for their novel theories of antitrust harm that is effected through “search bias.”

Both the Volokh brief and this new Ammori report are persuasive though I’m not sure they will prevent the FTC from bringing a case against Google. However if it comes, much of the legal research will already have been done.

Thompson’s “personal reasons,” as we all know, are: misrepresenting that he had a computer science degree. Yahoo EVP Ross Levinsohn is reportedly set to become interim CEO, with the apparent hope that he could take the helm permanently.

Swisher adds that the situation is still in flux and could change. The board is apparently meeting this morning.

Shareholder and hedge fund manager Daniel Loeb aggressively pushed for Thompson’s ouster and kept pressure on the board. It’s seems relatively clear that the ethics issue was an opportunity for Loeb to push his agenda.

He stoked a public-relations crisis at Yahoo that gave him more leverage in asserting demands and extracting concessions from the board. Indeed, as part of a Yahoo “settlement” with Loeb, he is “set to get three board seats from a slate proposed by him as part of a proxy fight aimed at Yahoo,” according to AllThingsD.

When the news first broke that Thompson didn’t have the computer science degree he claimed I didn’t believe it would result in his ultimate resignation. After all, he had many years of experience as a successful tech executive in Silicon Valley. In other words, he had the desired experience; the paper was a technicality of sorts — not to minimize the ethics issue.

Yet the scandal refused to go away and had become a major PR headache for Yahoo and a distraction for employees. Yahoo announced Thompson’s appointment as CEO in early January of this year. The Yahoo director who was instrumental in Thompson’s hiring, Patti Hart, resigned last week. But that didn’t put the matter to rest or satisfy Loeb.

Yahoo has endured a remarkably tumultuous period over the past three or so years. It has seen multiple CEOs, the disruption of the Microsoft search deal, waves of layoffs and executive departures as well as multiple reorganizations and strategy shifts. What an amazing and sad spectacle.

Thompson had begun to execute on a new turnaround plan, including reducing headcount at Yahoo by 2,000 employees. Levinsohn came in under previous CEO Carol Bartz and is well regarded inside the company and in the industry. His background is very different from Thompson’s. It’s not clear whether he’ll now want to put his own stamp on the company or will proceed with Thompson’s plan.

Before coming to Yahoo, Levinsohn was president of Fox Interactive Media.

Out earlier today came the Yahoo release announcing Levinsohn’s appointment and that of Fred Amoroso as the new Chairman of the Yahoo Board.

Postscript, 11:15 pm PT by Matt McGee: The Wall Street Journal is reporting that Thompson told Yahoo’s board of directors that he’s been diagnosed with thyroid cancer, and that his decision to leave the Yahoo CEO post was influenced “in part” by the diagnosis.

Photo credit: Wikipedia Wikimedia Commons

According to our source, comScore will report that both Google and Bing have made small, incremental gains since last month and seen modest growth since last year. One or both are growing, it appears, at Yahoo’s expense. AOL and Ask are basically flat.

Yahoo is at its lowest point to date and has recorded its eighth straight monthly decline in terms of market share. Our source believes that Yahoo’s share could sink quite a bit lower over time.

Here’s the comScore share breakdown for the past two months compared with a year ago:

Data source: comScore (5/12)

These data do not include mobile search query volumes. We know that many publishers are seeing a range of between 15 percent and 25 percent of their queries now coming from mobile devices. In some categories the percentages are much higher: restaurants for example where 40 percent or even 50 percent of traffic is now from mobile.

Google is far and away the dominant provider of browser-based mobile search query volume in the US.

Postscript: Now the official comScore numbers are out and they’re consistent with what we posted above.

Microsoft’s Qi Lu has just taken the stage and is talking about the launch of the new Bing. He’s discussing the need to “reorganize the web for task completion.” The web is no longer a collection of documents; it’s a web of documents, places and people. “It’s dramatically richer today,” than it was just a few years ago he says.

Lu is now talking about the importance of incorporating the social graph and related content into search if it is to remain central to the online experience and remain “the gateway to the web.”

Social now a critical part of the web

Relationships and conversations among people are now a critical part of the web. Search needs to be “re-invented” to account for the new web of entities/places and social content and sharing. Accordingly, here are the features elements of the new Bing at a high level:

• Complete redesign of the Bing UI and architecture (we’ve seen some of this already)
• Snapshot: designed to enable users to complete tasks “easier and better over time” (this is an index or corpus of things and places with related information)
• Sidebar: designed to make social “front and center” as a part of the new search experience

The new structure of Bing is aligned with the “prevailing information architecture” of the web today. Lu is now taking us on a tour of the Bing SERP. It’s cleaner, faster and search quality has been improved.

Snapshot and Sidebar

Lu is discussing Snapshot and Sidebar. Snapshot is intended to help people access information and features for task completion: watching movie trailers, making restaurant and hotel reservations, for example. It primarily is about entities and places — rather than people or documents.

Sidebar is populated with people from your network and “experts” (now mainly from Twitter) who might have useful information. You can interact with people (in your network) right on the search results page within Sidebar. Lu says this “makes people an integral part of the search experience.”

Bing will thus be seeking to combine the power of search and social networks together in a single UI. He says that Sidebar will include numerous social networks: Facebook, Twitter, LinkedIn, Quora, Foursquare, Google+ and others over time.

Lu ends with a statement about the challenges of ranking and presenting all the new data that Bing is incorporating in a useful and coherent way.

Now Microsoft’s Harry Shum is up to talk about relevance and ranking of people, documents and entities. Shum says that Bing search quality is equal to or greater than Google according to third party review. He says that in blind tests users prefer Bing to Google.

Shum is demonstrating the Snapshot panel. He also talks about how Bing is now leveraging and blending social signals into its broader algorithm to help rank results and entities. There are separate but overlapping ranking indexes feeding into the new Bing SERP.

Shum also discusses the fact that people are being ranked (for Sidebar) to help users accomplish their tasks. He uses the example of finding a hotel in San Francisco. Bing may show, for example, people in your network who reside in San Francisco. It will also show travel experts from Twitter who may know about SF hotels. Shum explains there are a number of factors involved in ranking people in Sidebar. (Sidebar optimization anyone?)

He says that Bing will ultimately build an “index of people” that will parallel the main web index. What Bing is trying to do is very daunting from a computer science perspective, he says.

The SERP design challenge

Shum hands off to Derrick Connell, VP of Search Program Management. He repeats the message: search result pages need to evolve to accommodate the various types of content, graphs and information being indexed and presented in the new Bing. Bing did 3,500 UI experiments in developing the new SERP. Microsoft took a lot of time to “ensure that the architecture of the page was right.” Snapshot and Sidebar are not yet live but coming very soon.

Bing eliminated the left rail in the new simplified SERP but not the content and features previously presented there. We’re now hearing the genesis of the new SERP. “Overall we’ve cleaned up the page” for basic search results.

Here come Snapshot and Sidebar. We’re getting a deeper dive on Snapshot, which is not going show up for every result. “It’s more of a selective experience.” However the social Sidebar will always be present for the user.

Sidebar will present your network in one area and “influentials” (experts) in another area on the right column panel. You’ll see posts or tweets from those experts that are relevant to your query. But you won’t be able to talk to or question them directly. However you can with people in your network.

Now the demo

For basic queries we’ll get basic results: 10 blue links without Snapshot or Sidebar. This is the new “cleaner” Bing SERP.

We’re now being shown a somewhat more complex search (e.g. a local restaurant or hotel query), which triggers Snapshot. An arrow will indicate that if you hover you’ll get the Snapshot panel with more information including reviews and the ability to make a reservation without leaving the page.

Now Sidebar is being shown. As mentioned, it presents relevant people from your network and influentials, allowing users to ask their networks for advice from within the SERP. This is a pretty cool and impressive integration.

To get the benefit of Sidebar you’ll need to be signed in to Facebook or sign in to Bing with Facebook Connect.

Facebook: “People matter”

Facebook is here — I missed the name of the individual speaking — talking about the importance of human connections and advice from friends as part of consumer decision making. He’s saying that Sidebar and its social capabilities mirror how decisions are made in the real world. Bing is “keeping the core integrity of search results and giving you the ability to reach out to people” from within the search results page.

When you ask for help or advice from people on Facebook that question or request will show up on your wall. You can ask everyone or direct the question to specific people (whom Bing thinks are relevant to the query). You can’t yet choose people not presented but that will likely come. The person or people you’ve selected will get a private notification and your question won’t show up on their wall, newsfeed or timeline.

What happens in mobile?

Mobile offers a different UI than the PC experience of the new Bing. In mobile there will be a more “stacked” experience rather than a three panel presentation, as on the PC. It’s visually different but still keeps social contacts separate from the core search results.

Microsoft says the experience will be more swipe-based for smartphones. It’s still being developed and finalized. The emphasis is on HTML5 but I was told the new features will also be incorporated into Bing’s apps.

Roll out and Q&A

Microsoft is still testing and refining the product but you can sign up to opt-in to the new experience at Bing.com/new. It will roll out gradually over the coming weeks.

How will the design affect ads? Conventional search ads will remain in their current positions. Microsoft said, however, it would experiment with new ad opportunities and formats in Snapshot and Sidebar.

Facebook and privacy: I asked who on Facebook would see questions that were asked through Sidebar. The person asking the question via Bing will see the question on his/her wall. The intended recipient of the question will get a notification. However none of the person’s contacts or friends will see the question in the Facebook newsfeed.

Metrics to measure success: Microsoft said that it would look at user engagement with Sidebar to evaluate success, in addition to the conventional search metrics.

Is Bing getting special access to social content? Microsoft said that Bing was just using the Twitter and Facebook APIs that other developers and publishers also had access to.

How will Bing determine what friends to show on Sidebar? Harry Shum said that Bing was just in the beginning of “ranking people.” But it considers public profile information, geography, interests and comments and other information on Facebook.

Some quick, final thoughts

The integration of social Q&A via Sidebar is pretty compelling. I haven’t tried it yet and so can’t speak to the user experience. While Google has some of this functionality (mostly buried) Bing has created something in principle that is more “coherent” and potentially useful than what Google is doing with social integration into search. (We’ll see how Google responds.)

Sidebar is pretty differentiated from Google Search Plus Your World (which is playing peekaboo today). And it may finally give Bing a more distinct identity in the market.

If people actually start engaging with Sidebar and get useful answers from their networks, it could generate new momentum for Bing and create a “next-generation” social-search experience. We’ll see.

As these new features roll out we’ll have more in-depth coverage.

A Preview of Google’s Legal Arguments?

Yes says UCLA Law Professor Eugene Volokh in a new paper-cum-legal brief. The document, which was commissioned by Google, also serves as a kind of template for legal arguments Google might make in a US antitrust case. The release of this paper is no doubt designed to “remind” Congress and the FTC that this law exists and that Google would potentially win an antitrust case on these grounds.

The 27 page document (below), replete with case law citations, can be summarized in one sentence: search engine results are editorial judgments, like newspaper content, protected by the First Amendment and thus precluded from being regulated by antitrust law and the US government as protected speech.

Professor: Nobody Can Dictate What Google Can “Say” in SERPs

Professor Volokh argues that Google may put whatever it likes in the SERP in whatever order it deems worthy, including links to its own properties and services and nobody is entitled to intervene and dictate how Google may display search results. It will be a shocking (though not entirely novel) argument to those who’ve complained against Google.

Volokh says two cases, Search King, Inc. v. Google Technology, Inc. (2003) and Langdon v. Google, Inc. (2007), firmly and conclusively establish that search results are protected editorial speech. While the US Supreme Court has not ruled on the specific question of whether search results are protected speech under the First Amendment, Volokh cites numerous Supreme Court decisions that together stand for the idea that “the First Amendment fully protects Internet speech” and “fully pro­tects Internet speakers’ editorial judgments about selection and arrangement of content” (i.e., Google).

The First Amendment vs. Antitrust Law

The most interesting part of the paper concerns the application — or lack of application goes the argument — of antitrust law to Google’s organic SERPs. (The document doesn’t discuss AdWords.) Volokh admits that the government has authority, in some cases, under antitrust law to regulate companies such as newspapers when their practices discriminate unjustly against competitors. However, he argues, this does not extend to matters of editorial discretion, even where the speaker has a “substantial monopoly.”

Volokh cites cases that stand for the broad idea that the protected exercise of speech cannot be regulated by antitrust law: “search engines’ selection and arrangement decisions reflect editorial judgments about what to say and how to say it, which are protected by the First Amendment.” He adds, “[E]conomic regulations may not be used to require a speaker to include certain material in its speech product.”

The bottom line argument is that even under the guise of antitrust enforcement the government cannot interfere with protected (and absolute) editorial discretion (i.e., the Google SERP).

Is Google More Like a Cable TV Company or a Newspaper?

One case that “goes the other way” and could potentially support regulation of the Google SERPs is called Turner Broadcasting System, Inc. v. FCC (1994). That Supreme Court case held that cable TV operators can be forced to carry programming against their will under federal law. The cable companies had argued that the federal “must carry” law was impermissible content regulation barred by the First Amendment.

Volokh distinguishes the case and argues Google and search engines are not like cable TV companies in several respects. He says in the Turner case there was almost no other way for consumers to access the disputed programming. By contrast he says there are plenty of other ways online to get access to content other than on Google. People can use Bing or Yahoo for example.

The Turner court reportedly held that the cable companies were mere “conduits” of third party speech and not editorial content producers themselves (like newspapers). Google is more like a newspaper than a cable TV company says Volokh. Yet I’m not quite sure the Turner case is that easily brushed aside.

Google is not generating the contents of its own SERPs (except in selected cases such as Google Maps or Google+). Rather it, like cable companies, is conveying third party speech and content (in the form of links). One could persuasively argue that Google is in fact more like a cable company than a newspaper.

Still the government would have a formidable challenge to overcome the weight of First Amendment case law that Volokh cites, which supports Google’s “absolute” discretion over what shows up in SERPs. I agree that it appears a very tough case for the feds to make.

Related Entries

• How “Facebook Search” Could Help Google Escape The Antitrust Noose
• TheFind Joins FairSearch.org To “Restore Balance” To The Search Marketplace
• US Subpoenas Apple For Details About Default iOS Google Search Deal
• Report: FTC Expanding Anti-Trust Investigation Of Google To Include Google+
• Deconstructing “Search Neutrality”
• FTC’s Google Probe Will Probably Come Away Empty Handed
• Santorum & Google’s Search Quality Czar Matt Cutts Makes The Colbert Report
• Once Again: Should Google Be Allowed To Send Itself Traffic?
• The New York Times Algorithm & Why It Needs Government Regulation

Many have lamented the rise of apps and the return of “closed” proprietary platforms  (e.g., Apple, Facebook). Recently in a widely discussed interview Google’s co-founder Sergey Brin pointed to “walled gardens” and government censorship as threats to the established web. He later clarified that the biggest threat to the web was from government censorship and not Apple.

One of the reasons that Brin and others don’t like apps is that their internal content is not indexed. Plenty of apps surface in search results but not what’s inside.

A number of app search engines have arisen to confront the so-called “app discovery problem.” Among them are Quixey, Chomp (recently acquired by Apple), Appsfire, Appolicious and Xyologic. Yahoo has built an app search engine; and one can also search Google Play for apps of course. Bing also dabbled in app search for a time.

The central difference between most of these sites and Quixey is that the latter is not simply indexing and searching mobile apps. Quixey characterizes what it does as “functional search” rather than app search. It’s indexing available apps across platforms (including the PC), as well as web content pertaining to those apps.

The idea is that users will enter queries that describe tasks or goals to accomplish rather than specific apps or even app categories. For example, in response to the query “learn french,” the search engine produces a range of results that show mobile apps but also “apps” for Firefox, Facebook, Mac and Windows (both paid and free).

Quixey won’t go so far as to say that it’s a direct competitor to Google. However it does regard itself as more effective for discovering apps and app content (broadly defined). It also suggests by implication that it’s something of a Google successor in some respects. It uses the tagline “a new type of search” on its site.

The company was founded in 2009 and has raised just over $4 million to date. Eric Schmidt is an investor. It’s also talking to various third parties about powering their app search. This is something that other app search engines are doing as well.

In one way of looking at the world apps now represent a parallel universe of content to the more traditional “open web.” HTML5 may eventually succeed in bridging the two worlds; however that hasn’t happened yet. Many assume and some are banking on the idea that apps are now a permanent new way to deliver web content — whether in mobile or online. In that arena Quixey is trying to the Google for the new apps era.

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• Chomp: An Apps Search Engine Or “Yelp For The App Store”
• New comScore Study Suggests 50 Percent Of Local-Mobile Search Happening In Apps
• More People Now Using Mobile Apps Than Browser — comScore

The Bing blog says that the intent behind the new SERP is to a create a “fresh, de-cluttered experience designed to help you find the results you want faster” and to make the page “easier to scan.”

Google and Bing Switch Places

Bing originally launched with a visually richer UI and an effort to bring more content and filters to the SERP (“answers not links”). Bing’s more “visual” and somewhat “warmer” UI were differentiators from Google. But Bing’s new-look UI is much more Googly, although Microsoft would never describe it that way. In a way Google and Bing have now switched positions.

Below are two examples of the previous and the new Bing SERP. I compared the queries “search market share” and “best sushi in NYC.” Whether you like the new Bing SERP is partly going to be a function of personal taste and whether you feel nostalgia for a simpler SERP.

Old Bing

The “old UI” has fliters and refinements in the left column. Also notice the color and aesthetics of the page — the gray bar at the top and the “compressed” spacing between results and links. The new UI below is “longer,” with more “whitespace,” which does make the page more readable.

New Bing

The new UI also transfers the left-column filters to the lower part of  the right rail, below the ads.

Here’s another example for “best sushi restaurant in NYC.” The new UI is “cleaner” but loses some of the “personality” that Bing brought to the SERP — if I can say that.

Tapping “Nostalgia” for a Google Past?

One question is whether Bing loyalists will like the change. Another perhaps more interesting question is whether Google users pining for a simpler time will switch because this reminds them of an earlier Google. Regardless, my instinct and intial guess is that this will have a positive impact on Bing usage.

Tell us what you think. (The comments below are positive.) Do you like Bing’s new look? Do you think it’s a “contrarian” tactic designed to evoke a “simpler time”  in search?

I was talking to Lehmbeck about mobile search trends and what kinds of consumer response he was seeing to various campaigns. Lehmbeck gave me some unpublished, internal data that I’m now sharing in this post. He said that mobile paid search “looks like much like search advertising did in 2001.”

15 to 25 Percent Mobile Paid Search Traffic

Between 15 percent and 25 percent of paid search traffic is now coming from mobile devices according to Lehmbeck. He adds however, “In local-heavy categories, such as dining, auto services and entertainment this number jumps to 50 percent or more.” He says that with the rise of smartphones “consumer engagement [with mobile search] has gone through the roof.”

Lehmbeck points out that online-only retailers are also starting to use mobile to nab in-store shoppers. “As mobile queries grow and these brands start to create highly optimized mobile experiences, this trend will only continue.” Lehmbeck told me that traffic to e-commerce sites via mobile is somewhat lower than the average (5 percent to 15 percent) but that some e-commerce sellers are seeing a “great ROAS” (return on ad spent).

Much “More Attuned to Location” in Ad Copy

Mobile consumers are “much more attuned to location in ad copy” than online search users according to Lehmbeck. “When a user searches with implied local intent, ads that leverage geographic indication tend to perform better.” Searches like “garden supplies” or “furniture store” are in this category.

Explained Lehmbeck, “We have seen some very strong results for ads that reference location or local offers, especially those that do it in an intelligent way (e.g. “Your Garden Superstore – Take 20% Off in Our Los Angeles Locations This Weekend” or “Locate Your New Sofa – Over 15 Furniture Galleries in Los Angeles to Serve You”).” These ads see 50 percent greater engagement than ads do not indicate where to buy or what specific offers are available in their area.”

Offline Conversions Boost Sales 5 to 10X

I’ve written in the past about the offline impact of paid search. It’s rarely tracked and so the true ROI of many campaigns is probably quite a bit higher than what is being calculated. Lehmbeck told me, “In some rare but very interesting cases [paid search marketers] are tracking it down to the offer level in conjunction with our platform and they have seen 5 – 10X sales when accounting for in-store conversions.”

Lembeck counsels marketers to “build out better mobile experiences and get a deeper sense of what the right metrics are for understanding the true ROI of mobile ad spend.” Indeed, recent data from Marin Software showed higher CTRs for smartphones but much lower conversions than for PC search campaigns. However that’s likely because mobile search conversions weren’t being tracked offline.

DataPop CEO Jason Lehmbeck will be presenting on the iConvert panel at SMX Advanced in Seattle next month.