The Ohio Attorney General's Office told a state appeals court that Google's search engine meets all the requirements to be declared a common carrier, arguing that a lower court misapplied the law by failing to see information as a good that can be transported.

Ohio state enforcers filed their opening brief Friday for an appeal seeking to reverse an August ruling that granted summary judgment to Google and refused to declare its search engine a common carrier.

The lower court found the designation does not apply because Google does not transport people or property and because it makes choices about what to display in search results.

But the brief Friday said the undisputed evidence shows that Google holds itself out as ready and willing to bring information to any internet user, subject to the same set of terms and conditions.

"As such, it satisfies every element needed to be a common carrier of information," the brief said. "The information it carries, although intangible, is precious cargo to the users who seek it. Those users deserve the protection that the law affords to customers of common carriers."

The Ohio Attorney General's Office lodged the suit in June 2021, seeking to classify Google Search as a common carrier or public utility, similar to railroads and electric companies that have to afford equal treatment and access to users. The concerns center on Google's ability to promote its own products like YouTube, Google Flights and Google Shopping over similar offerings from others.

Ohio Court of Common Pleas Judge James P. Schuck allowed the common carrier portion of the case to proceed with a May 2022 ruling that tossed the state's alternative request to have Google declared a public utility. The judge granted Google's summary judgment request in August.

In the brief Friday, state enforcers said millions of Ohio residents rely on Google's public representation that it responds to queries with the most relevant and useful information and said the state filed the case over concerns that Google is instead prioritizing information that "best boosts" its bottom line.

"Such self-preferencing behavior offends basic tenets of fair-dealing, and its impact is especially severe when perpetrated by a firm that holds itself out to the general public as willing to play by the rules — the same rules for every user and content provider with whom it does business," the brief said.

In deciding that Google's search engine does not meet the requirements for the common carrier designation, enforcers said the lower court wrongly found that Google does not transport property by focusing on the search results page that Google returns to users, instead of the information itself.

The lower court determined that Google creates a product when it generates the search results page, the brief said, rather than moving a product by sending information to users.

"Google's placement of information into a [search results page] for delivery to the user does not alter the fact that what people are seeking and obtaining from Google is information," the brief said.

While common carriers of the past generally transported people or tangible goods, via trains, taxis or ships, the analysis has been extended to intangible assets such as telephone transmissions and electricity, enforcers said. One of the most important and valuable goods today, the brief said, is information.

"The firm most frequently called upon to transport that information to them is Google," the brief added.

Enforcer said the lower court also wrongly applied the "indifferently" element of the common carrier test to the information that Google carries, instead of the terms and conditions for the service. The lower court is asserting that a company cannot be a common carrier if it selects the goods that it carries, but the brief said this adds a requirement that common carriers only transport the exact same goods to everyone.

Google uses automated systems to apply a standard set of factors designed to show users the most relevant information for each query through a ranking process. It also tells people the rankings are not impacted by any financial relationship that Google may have with the source, according to the brief.

"In other words, Google holds itself out as applying a standard set of rules and processes equally across all websites to deliver the product each user requests — information relevant to the user's need," the brief said. "Such operations are the essence of common carriage."

Google's notice of appeal said the company would also challenge the dismissal ruling that tossed a count seeking to have the search engine declared a public utility. But the opening brief filed Friday only addressed the common carrier count.

A representative for Google declined to comment Monday. Representatives for the Ohio Attorney General's Office did not immediately respond to a request for comment.

Ohio is represented by Dave A. Yost, Jennifer L. Pratt, Chad M. Kohler and David Oppenheimer of the Ohio Attorney General's Office.

Google is represented by Michael R. Gladman, Justin E. Herdman and Molly M. Dengler of Jones Day and Gloria K. Maier and John E. Schmidtlein of Williams & Connolly LLP.

The case is State of Ohio ex rel. Dave Yost v. Google LLC, case number 25 CAE 08 0070, in the Court of Appeals of Ohio, Fifth Appellate District, Delaware County.