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June was a bad month for publishers trying to protect their copyrighted material from AI. First, a federal judge in San Francisco ruled that Anthropic was not breaking the law when it trained its Claude chatbot on copyrighted books. A week later, a federal lawsuit against Meta by authors including Sarah Silverman and ​​Ta-Nehisi Coates was thrown out, for using arguments the judge deemed invalid.

Now an innovative lawsuit by Penske Media Corporation, which is home to publications like Rolling Stone, Deadline, and Billboard, is trying a new tack. Rather than suing over the use of copyrighted material, Penske is relying on an antitrust claim—arguing that the automated results from Google’s AI Overviews unfairly compete with the sites, because users are less likely to click on links when the information is predigested for them. The case builds on previous lawsuits, including one filed by the education tech company Chegg, making similar claims, and another in which a federal court in DC found that Google held an illegal monopoly over search.

The suit “is a very creative way to address the underlying facts of the situation when they don’t quite fit the copyright context,” said Mailyn Fidler, a professor at the University of New Hampshire’s Franklin Pierce School of Law. A copyright claim would be hard to win, she added, because Google isn’t directly taking language from the underlying materials for its AI Overviews.

Andy Baxter, a DC-based business litigation attorney at Scale LLP, whose clients include some news publishers who would be affected by the case, said the suit is an example of the evolution of the law to meet the needs of creators trying to protect their intellectual property when the obvious approach—suing over copyright violations—has failed. “Intellectual property law, as it is now, is deficient to address the challenges that AI posed to mid-market companies and creators,” Baxter said. Without sufficient protections for publishers and creators, “you’re going to get an internet information monoculture, where everything gets filtered through a small number of large AI platforms,” he said. “And that is the result that this antitrust angle on the litigation is really getting to the core of.” 

The case centers on an aspect of AI search that has increasingly worried digital publishers: the fact that AI chatbots, unlike traditional search, rarely lead to referrals to the original sources of information. A May report from the Pew Research Center cited in the Penske case found that Google users are half as likely to click on links when their search results produce an AI summary. Another study, from Columbia Business School, MIT, and Dartmouth, showed that Wikipedia has seen a significant drop in visitors since the launch of ChatGPT, with the greatest impact on articles whose content more closely resembles how ChatGPT might cover the same topic.

José Castañeda, a spokesperson for Google, said in a statement that the company’s search engine sends “billions of clicks to sites across the web” every day. “With AI Overviews, people find Search more helpful and use it more, creating new opportunities for content to be discovered,” he said. “We will defend against these meritless claims.” 

John Mark Newman, an antitrust expert and professor at the University of Memphis School of Law, noted that Penske was in part drawing on history to make its case. One key argument of the suit, which was also advanced by Chegg, is that Google is illegally engaging in a practice known as “reciprocal dealing,” by requiring customers to provide something in return for the use of its services—in this case, compelling publishers to provide content for the AI Overviews in order to appear in search results. The theory was used by federal antitrust enforcers in the 1960s to challenge the actions of large conglomerates. 

Penske, Newman said, “is using an old-school theory that was developed for physical conglomerate markets and applying it to this very twenty-first-century monopoly.” It has a chance of succeeding where other approaches have failed, he added, in part because of the recent rulings holding that Google is a monopoly. “It’s like you’re facing this thick glass wall: the first rock you throw at that glass wall might not break through, but at least it’ll crack,” he said. “And then the next time you throw that rock, it’s just that much easier.”

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