Judge in Penske vs Google Calls AI Practices ‘Unfair’

Google’s AI practices face scrutiny as Judge Amit Mehta questioned the tech giant’s use of publisher content in its AI Overview feature during a pivotal antitrust hearing. The exchange occurred on Tuesday while the court considered Google’s motion to dismiss an antitrust lawsuit filed by Penske Media. This legal battle centers on whether Google’s established dominance in search allows it to leverage that power to extract content from publishers for artificial intelligence training without fair compensation.

Judge Mehta, who previously ruled that Google holds an illegal monopoly in the search market, is now evaluating if that same dominance supports Penske’s claims. Penske argues that Google uses its monopolistic position to compel publishers to provide their content for AI generation. Jason Kint, CEO of Digital Content Next (DCN), attended the proceedings and shared detailed insights via social media, highlighting the tension between the court and Google’s legal team.

Disputing the “Product Improvement” Narrative

During the hearing, Google’s attorneys attempted to frame AI Overviews merely as a standard enhancement to their existing services. They characterized the long-standing arrangement where publishers allow Google to crawl their sites in exchange for search traffic as a “vague historical course of dealing.” In written filings, Google has maintained that AI Overviews is not a distinct product but rather part of search’s natural evolution, noting that publishers retain the ability to opt out of indexing entirely.

However, Judge Mehta appeared skeptical of this characterization. He challenged the notion that such changes are immune from antitrust laws due to their innovative nature. As Kint reported:

“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.””

The judge emphasized that publishers have little control over how their data is utilized once ingested by Google. He described the current model as being built “on the backs of the publishers” and explicitly stated that product improvements “are not immune from antitrust scrutiny.” This suggests the court is looking beyond technical definitions to assess the competitive impact of Google’s actions.

Economic Disparities in Content Acquisition

A significant point of contention raised during the session involved the economic models of different AI developers. Judge Mehta noted a clear distinction between Google and other major players in the generative AI space. While competitors like OpenAI and Perplexity are paying for content access, Google utilizes its search monopoly to ingest internet data at no cost.

Kint highlighted this disparity in his updates:

“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”

This observation underscores the argument that Google’s strategy creates an uneven playing field. By obtaining critical training data for free through its dominant search engine, Google may be artificially lowering its costs while simultaneously increasing barriers to entry for rivals who must purchase content licenses.

Publisher Vulnerability and Ongoing Litigation

Despite Google’s assertion that publishers can technically opt out of having their content used for AI training or appear in AI Mode, the practical reality presents a significant hurdle. If Google chooses to display only AI-generated summaries instead of traditional search results, publishers risk losing the substantial traffic driven by the “ten blue links.” The minimal referral traffic provided by AI Overviews is often insufficient to replace direct search visits, effectively forcing publishers into a corner where refusal means financial loss.

The case, which began in September 2025, remains active with no final ruling on the motion to dismiss yet. However, the judge’s questioning indicates he is closely examining whether the monopoly findings from the 2024 United States v. Google antitrust case apply here. The core issue appears to be whether Google is leveraging its search dominance to dictate unfavorable terms regarding content usage, potentially extending its monopolistic reach into the emerging AI landscape.