Although this lawsuit does not (yet) involve a copyright claim, it’s worth tracking in light of Brave Software’s recently filed lawsuit against Dow Jones: Chegg v. Google.
Both lawsuits, along with New York Times v. Microsoft, deal with combining AI with search engines, such as with retrieval augmented generation (RAG). For the Times case, Bing AI uses OpenAI’s GPT-4 to enhance searching with AI-generated answers. For the Chegg case, Google AI Overviews does something similar.
Chegg alleges that Google is unlawfully tying a website’s inclusion in Google search index with agreement to allow use of copies of the website to train Google’s AI model.
Chegg raises antitrust claims based on the following allegations:
5. But in recent years, Google has begun to tie its participation in this bargain to another transaction to which Chegg and other publishers do not willingly consent. As a condition of indexing publisher content for search, Google now requires publishers to also supply that content for other uses that cannibalize or preempt search referrals.
6. These uses include prompting generative artificial intelligence (“GAI”) programs running “large language models” (“LLMs”) to summarize publisher content that is responsive to user search requests in “AI Overviews” that appear ahead of search results on Google’s search engine results page (“SERP”). They also include training the LLMs that Google uses to generate AI Overviews, as well as excerpting key portions of publisher content in “Featured Snippets,” including in a format called “Questions and Answers,” that appear prominently on Google’s SERP.
7. Because AI Overviews and Featured Snippets often provide the answers to questions posed by search users, and because the answers are featured advantageously on Google’s SERP, they generate lower click-through rates to the original sources from which Google generates the answers, if Google provides links to those sources at all. Google’s foray into digital publishing is designed to make Google a destination, rather than a search origination point to other websites.
8. But for the exercise of its monopoly power to tie crawling for these substitutive purposes to crawling for search and high placement on the SERP, Google would pay publishers like Chegg separately for the right to republish and train LLMs with their content. If it did not, publishers would limit or block Google from crawling their web sites for any purpose.
9. Because Google does exercise such monopoly power, Chegg and other publishers are forced to acquiesce to this misappropriation of their content. Moreover, even if Google did provide a way to separately opt out of republishing in AI Overviews and Featured Snippets, publishers would be deterred from doing so by the presentation of those features in a way that deprecates search results.
10. Google’s use of its monopoly power to coerce publishers to supply content for other, often competing purposes as a condition of receiving search referrals from Google at all amounts to a form of unlawful reciprocal dealing that harms competition in violation of the Sherman Act. In many circumstances, it also constitutes common-law unjust enrichment.
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