Judge Says Google/Publisher AI Situation “Seems Really Unfair”

Google found itself pressed by Judge Amit Mehta about whether their monopoly position in Search enabled them to take publisher content and use it for AI answers. The exchange happened on Tuesday in a hearing to determine whether to grant Google’s request to dismiss Penske Media’s antitrust lawsuit over Google’s AI Overview feature.

Judge Mehta is the same judge that previously found Google to have an illegal monopoly in Search. The Tuesday hearing centered on whether that monopoly finding gives Penske a viable claim. Penske alleges that Google is using it’s monopoly position to force publishers to make their content available to Google for AI training and answers.

Jason Kint, CEO of Digital Content Next (DCN), a trade association that represents digital content creators, attended the hearing and detailed what happened in a series of tweets.

What Google Argued

According to Kint, Google’s attorneys explained that AI Overviews is a “product improvement” and described the traditional arrangement in which publishers let Google crawl their content in exchange for search traffic as a “vague historical course of dealing.”

Google’s written filings in the case have argued that AI Overviews is not a separate product from search and that publishers can always opt out of indexing, arguing that Penske’s claims are a demand for Google to stop the natural evolution of search.

According to Kint, the Judge Mehta didn’t seem receptive to the way Google saw it.

Kint tweeted:

“Google attorneys repeatedly characterized AI Overviews as a “product improvement” and called the historic traffic-for-crawling bargain with publishers a “vague historical course of dealing.”!!! GTFO. Mehta pushed back: the situation “all seems really unfair.””

He further explained:

“Mehta noted publishers lack control over how Google uses their content and described Google’s “product improvement” as being built “on the backs of the publishers.” Importantly, he said product improvements “are not immune from antitrust scrutiny.””

Google’s Use Of Publisher Content

The judge noted that other AI companies are paying for content whereas Google is using their search monopoly to ingest all of the internet and not pay a single dime for it. This was very interesting because it gives an idea of where the judge was leaning.

Kint tweeted:

“Mehta also observed that a market is clearly forming for GenAI inputs. Penske pointed to OpenAI and Perplexity as G competitors paying for content while arguing Google uses its search monopoly to obtain the same inputs at zero – raising rivals’ costs and barriers to entry. 4/5”

Why Publishers Can’t Say No To Google

Google truthfully insists that publishers can opt out of giving their content to Google for AI training. They can now also opt out of AI Mode and AI Overviews. But if Google only shows AI Overviews then that means a publisher may lose out of whatever crumbs of traffic AIO sends, which is far less than the ten blue links sent.

Not Looking Good For Google

The hearing is one round in a case that has been ongoing since September 2025. Mehta has not yet ruled on the motion to dismiss. His questions and comments at Tuesday’s hearing indicate that he may be considering whether the same monopoly power identified in the 2024 United States v. Google antitrust case may also be at play in how Google can use that dominance to dictate the unfavorable publisher/Search relationship terms.

Takeaways

Judge Amit Mehta’s questions and statements seem to indicate that he may be skeptical of Google’s argument that AI Overviews are just a product improvement. He raised the question of whether Google’s search monopoly gives it an unfair advantage in being able to use publisher’s content for training AI and for basing their AI Overviews answers with them, while competitors have to pay millions for content. His comments about publishers lacking control, Google’s AI features being built “on the backs of the publishers,” and product improvements remaining subject to antitrust scrutiny seems to indicate that Penske’s case may survive Google’s motion to dismiss.

It’s no secret that publishers and SEOs notice that traffic to websites have steadily cratered as Google transforms the traditional search box into, first an answer engine and next into agentic task completion.

• Mehta appeared skeptical of Google’s defense. He reportedly called the situation “really unfair” after Google characterized AI Overviews as a product improvement.
• Google’s product-improvement argument may not shield AI Overviews. Mehta reportedly said product improvements “are not immune from antitrust scrutiny.”
• The judge focused on Google’s advantage in obtaining publisher content. Mehta noted that a market is forming in which competing AI companies pay for content that Google can obtain at no cost.
• Publishers technically have ways to opt out. They can exclude content from AI training and now from AI Mode and AI Overviews, but opting out of Google’s AI search features also means giving up traffic from them.
• The monopoly finding hangs over the case. The central question is whether Google’s established search monopoly also enables it to dictate unfavorable terms for publishers whose content powers its AI features.
• Google has not lost this round yet. Mehta has not ruled on the motion to dismiss, but his questions indicate that Penske’s antitrust theory is receiving serious consideration.

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