Complaint Lodged Against Google Over AI Overview

Google’s AI Overview has been gutting traffic to websites for months. This has sparked an antitrust complaint in Europe.

Independent websites like Freezenet have been hammered quite severely in recent years over changes made by Google. At times, it feels like websites are in survival mode more than thriving and producing great content for users.

The problem, of course, is at least two fold. The first problem is Google slashing ad revenue for independent websites by as much as 40% since 2013. So, if you generate revenue from Google Adsense, you’re showing countless ads to people and getting fractions of fractions of pennies as a result. Since there are no real viable alternatives, switching to a different ad network is not really an option given the monopolistic nature of online advertising these days. To put this into perspective, we generate far more revenue from one Patreon subscriber than all of the ad revenue from Adsense.

The second problem is Google’s AI Overview. It wasn’t bad enough that we are getting our ad revenue slashed, but AI Overview is also doing an incredible job at gutting the traffic flowing to Freezenet. I raised these very issues back in May of last year because I knew that when I saw this being rolled out, I knew what the Search Engine Optimization (SEO) implications were going to be. In March of this year, I wrote about Google proposing AI only search results. By the time that was published, I had already experienced a massive decline in overall web traffic to the site. This caused even less ad revenue because fewer ads were being seen on the site. So, between the slashing of revenues and AI Overview, Freezenet was dealt a one-two punch (and I’m absolutely certain I’m far from alone in this experience).

One solution to all of this that have been brought up from some sources is to file a lawsuit against the companies behind the AI for copyright infringement. The problem is that copyright is not the tool to counteract this. For one, summarizing content constitutes Fair Use. For another, generating new work from existing material is transformative in nature. Again, not copyright infringement. If there is a way to go after AI companies when it harms revenues for content creators, copyright is not it. All you are doing is wasting time and money fighting with this angle.

Today, I learned of a complaint lodged against Google in Europe using antitrust as a legal solution. From Reuters:

Alphabet’s (GOOGL.O), opens new tab Google has been hit by an EU antitrust complaint over its AI Overviews from a group of independent publishers, which has also asked for an interim measure to prevent allegedly irreparable harm to them, according to a document seen by Reuters.

The company is making its biggest bet by integrating AI into search but the move has sparked concerns from some content providers such as publishers.

The Independent Publishers Alliance document, dated June 30, sets out a complaint to the European Commission and alleges that Google abuses its market power in online search.

“Google’s core search engine service is misusing web content for Google’s AI Overviews in Google Search, which have caused, and continue to cause, significant harm to publishers, including news publishers in the form of traffic, readership and revenue loss,” the document said.

It said Google positions its AI Overviews at the top of its general search engine results page to display its own summaries which are generated using publisher material and it alleges that Google’s positioning disadvantages publishers’ original content.

“Publishers using Google Search do not have the option to opt out from their material being ingested for Google’s AI large language model training and/or from being crawled for summaries, without losing their ability to appear in Google’s general search results page,” the complaint said.

Reuters noted that this lawsuit is similar to one filed in the US earlier this year (in the midst of all the other chaos going on this year, it’s probably not a surprise I missed this story at the time). This specifically revolves around the Chegg lawsuit against Google. Since the Reuters piece was paywalled, here’s MediaNamas report on this:

Chegg’s announcement came within its disclosure of the company’s financial results for the latest quarter, where it spoke about the issue at length. Its argument against Google, filed in the U.S. District Court for the District of Columbia, claims three key aspects:

• Reciprocal dealings: Google compels companies like Chegg to supply their “proprietary content” to feature in its search function.
• Monopoly maintenance: Google fosters an unfair monopoly within search and anti-competitive conduct to “muscle out” Chegg and similar players.
• Unjust enrichment: Google benefits financially from Chegg’s content without any remuneration to the latter.

Now, I’m sure there is no shame in admitting that as a digital rights journalist covering things like copyright and privacy, the concept of unjust enrichment in an antitrust lawsuit hasn’t exactly been top of mind for me in my coverage. As a result, I’m a bit less familiar with this legal concept. So, I dug up this explanation which reads as follows:

The doctrine of unjust enrichment allows a plaintiff to recover from a defendant, without the benefit of an enforceable contractual obligation, where the defendant has unfairly benefited from the plaintiff’s efforts without compensation. In New York, the elements of an unjust enrichment claim are “that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y. 3d 173, 182 (2011).

As the viability of an unjust enrichment claim depends on broad considerations of equity and justice, several factors can drive the determination of whether these elements are adequately pleaded or later proven. For one, a close relationship between the plaintiff and defendant is required. In addition, the plaintiff’s actions must have been induced in reliance on that relationship. Finally, essential to the claim is the absence of a valid contractual relationship governing the acts giving rise to the claim.

At least from the US perspective (so, in respect to the earlier case), unless there is something else I’m missing, that sounds like a case can be made that AI Overview represents unjust enrichment to Google. It’s very clear that the Party, in this case, Google, was enriched thanks to users sticking to their service rather than clicking onto the third party website. Google, after all, runs advertising on their general search results, so they do get a monetary benefit along with keeping users on their search engine for other searches and services.

For the second point, the third party, in this case, websites like Freezenet, was harmed by this activity. In this case, Freezenet gets fewer clicks and, as a result, less traffic and less ad revenue and fewer subscriptions.

Where things get interesting is equity and good conscious which seems to be a bit fuzzier. In taking a stab in the dark on that part, Google does maintain what is arguably a monopoly on, among other things, search. This has been debated back and forth, but it is extremely difficult to just rely on another search engine from a publishers perspective and expect the same amount of traffic to come flowing in. Alternatives would simply drive less traffic – and that’s a best case scenario. If you opt into allowing Google to crawl your website (which is normal), then you can’t simply opt out of Google’s AI Overview. It’s either you are in both or neither.

Further, but Google deriving value from another persons work without compensation in this manner, the relationship technically becomes parasitic. Given a length of time, the website eventually becomes financially unstable and, in all likelihood, forced to close. Google derived that value from that source and can simply switch to another source to summarize, draining that websites ability to obtain traffic. Independent websites, one by one, get drained of traffic and the value of the content is transferred over to Google in every instance. Therefore, it would potentially meet the bar of good conscious and equity since one party is deriving value from the publishers (websites) and causing those websites hardship, hampering the websites ability to survive. Google’s survival is not in question here.

The value is simply going from smaller websites to the AI while offering little to nothing in return to those websites. This can be seen by users simply seeing the answer and not clicking through. While Google does offer a small icon to show a source, users are less inclined to click that small button and click through the subsequent link. This is unlike regular links being displayed where a thumbnail, a sentence or two being offered, and a large link over the title encouraging users to click on that link to find out more information. After all, Google is offering the heart of the content in their answers as opposed to a short sentence or two where the information is technically incomplete. Put simply, a product is being replaced as opposed to being advertised, meeting the bar of equity.

If that last bit sounds confusing, maybe a screenshot comparison works. For instance, let’s say I’m building a village in Minecraft. The problem is, I don’t know how to attract villagers to my village. So, I Google ‘Minecraft attract villagers’. When I do so, I am provided with this right at the top of the result:

(Note: Holding emerald blocks didn’t attract villagers in my testing of this, so there is even inaccuracies in this answer, but that’s besides the point.)

For any reasonable user encountering this in a search result, they would get the information they are looking for from this. Sure, there are little link buttons on the bottom right hand corner, but there is no need to click on those links since the user simply stays on Google to get their answer. The websites that produced that material didn’t derive a benefit even though the websites were the ones that produced that content (through users or the publishers themselves). There is no equity to be had. One party produced the content, the other party got the value out of it without giving any value back to the website afterwards. That is expected behaviour of users bolstering this point.

Now, take this scenario and apply it to a standard search result:

Note that the link is in the title, making it easy to click. You can also note that there is enough information to show the user that they might have found the right resource, but the information is incomplete. So, there is an incentive for the user to click on that link in the title to find out more. The user is encouraged to click on that link to find their answers. As a result, the website derives a benefit of the user clicking through onto their website where that website is free to serve advertising or subscriptions in order to derive a benefit from that click. In this scenario, the relationship between the website and the search engine is equitable.

Hopefully, with these two examples, you can see the big difference in this case.

So, as far as US law is concerned, if I got the above right, I’m thinking that there very well may be a case to be had here. I’m less familiar with European law and caselaw, but it sounds like the complaint is following a similar path.

I’m admittedly curious to see where this goes and intrigued by the arguments I’m seeing so far.

Drew Wilson on Mastodon, Twitter and Facebook.