Not unsympathetic

While Google is getting the dismissal it wanted, it doesn’t come away looking particularly good. Mehta recognizes that Google’s approach to AI search may be unfair to web publishers even if it’s not illegal.

“The court does not treat Plaintiffs’ alleged harms lightly,” he wrote. “Nor is it unsympathetic to the situation publishers now find themselves in, and the knock-on consequences to journalists, educators, and other online creators whose content Google takes and repurposes without compensation.”

This case essentially comes down to the nature of innovation. Google is changing the way search operates, and that may come with economic harm. However, not all economic harm that may befall a company is the product of an illegal act. Mehta says that antitrust laws cannot be applied in place of legislative action just because something feels unfair: “The court is bound to apply the law only as it is written, not how the court or any party believes it ought to be.”

Google will undoubtedly face more legal challenges over AI search, but it’s going to be an uphill battle in US courts absent new legislation, and lawmakers have been slow to adapt to the AI era. Publishers may have more luck overseas. The European Commission is currently considering these same questions, and it tends to take a dimmer view of Big Tech’s conduct. The UK has also ordered Google to provide an AI opt-out for sites that want to remain in organic search results.

Google is exploring ways to pay sites directly for contributing to AI answers, but its pilot program is reportedly not going over well with publishers.