Kevin Willing

Google's AI Overviews = theft 🚨 And Google just got smacked with a lawsuit by Chegg -- and it's utterly fantastic ⚖️ I'm a former commercial litigator turned online travel publisher -- here are my notes from reading the complaint (link in next tweet) 👇 (warning, this summary is long & took me all morning to put together -- if you're a publisher please take 10 minutes to actually read it & share it with others) 1) Chegg is represented by the Susman Godfrey firm -- which means they are not messing around. Susman has quite the reputation as savvy, hard-charging litigators 2) Importantly, the compliant is grounded in antitrust law (NOT copyright, as I initially expected). And, goodness, it's a real banger .... 3) The complaint says the "exchange of access for traffic is the fundamental bargain that has long supported the production of content for the open commercial Web." 🎯 4) It continues: "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." 5) Chegg talks not just about AI Overviews, but also references featured snippets 6) 🫶this part -- "Google’s foray into digital publishing is designed to make Google a destination, rather than a search origination point to other websites." 7) Even if Google provided a separate opt-out for AI Overviews, it wouldn't work - because Google's monopoly power creates a collective action problem 8) A lot of fantastic points about how Google unfairly leverages its monopoly power to bend the open web to Google's will 9) Paragraph 13 is chef's kiss 🫰... "Google’s conduct is already eroding incentives for Chegg and other publishers to produce such valuable and useful content. If not abated, this trajectory threatens to leave the public with an increasingly unrecognizable Internet experience, in which users never leave Google’s walled garden and receive only synthetic, error-ridden answers in response to their queries—a once robust but now hollowed-out information ecosystem of little use and unworthy of trust." 10) Search engines are supposed to be intermediaries between users and web publishers. The complaint quotes old-school Google saying "We may be the only people in the world who can say our goal is to have people leave our website as quickly as possible." 11) Search is a uniquely important channel for publishers. Other channels of traffic like social media can never replace search, because that traffic is not intentional 12) "Put simply, Google’s search monopoly gives it control over online distribution for digital publishers. Google uses that power to force digital publishers to give up their content. Google then itself acts as a publisher, either by republishing portions of other digital publishers’ content or by using GAI to summarize the content. The end result is that users increasingly consume other web publishers’ content on Google’s SERP, either in abridged or derivative form, which starves those publishers of traffic and revenue." 13) Chegg calls Google's strategy for publishers "embrace, absorb, extinguish" 14) Next is an entire fantastic section recounting the history of "Google’s Transformation from a Search Engine to Web Publisher" 15) Google appropriated publisher's content in 2 phases. Phase I it calls the 'republishing phase.' The complaint talks about featured like featured snippets & People Also Ask 16) Hilariously, paragraph 63 includes a screenshot of Sundar Pichai's mug inside a SERP for "who is google's ceo" 16) "Google refers to Featured Snippets, Top Stories, and People Also Ask as “search features.” But they are separate and distinct products from search results. This is Google acting as an answer engine—not a search engine." 17) Republishing is not automatically bad, but the problem is that Google forces it on publishers as a condition for appearing in Search (of which it has a monopoly) 18) "The decision to opt out of republishing by disallowing snippets or withholding Search Index Data is a Hobson’s choice. " 19) Phase II of Google's strategy to dominate online publishing centers around AI Overviews ("GAI") 20) Complaint notes that the non-monopolists like OpenAI and Perplexity have been forced to do licensing deals with many publishers, whereas Google has largely avoided this cost thanks to its search monopoly 21) Complaint walks through the differences between LLM pre-training and RAG (a point I've been trying to educate publishers on for months and months) 22) Next is a recap of Google's LLM product history: Bard, SGE, Gemini & AI Overviews 23) @rustybrick commentary is cited quite a bit (see footnotes on pages 40, 41) 24) The transition to AI Overviews "all but completes Google’s evolution from a “search engine” to an “answer engine” that publishes answers to user’s queries. Its formerly symbiotic and complementary relationship with publishers has now become overwhelmingly parasitic and competitive." 25) Google's own marketing language directly admits that the purpose of featured snippets & AI Overviews is to prevent users from clicking throughs to publishers 26) Next section talks about how Google's unauthorized use of publisher content for AI training 27) "Google has been intentionally vague in identifying the precise data sets used to train the LLMs underlying Gemini and AI Overviews" 28) "Google’s Terms of Service indicate that it uses all the information that it collects for search indexing to train its LLMs, including Chegg’s data. " 29) Google announced Google-Extended in Sept 2023, but blocking it doesn't change that Google trained on your content or that Google uses it for RAG 30) Next section: Google poses a "fundamental threat" to online publishing 👏👏 31) Lots of discussion on how AI Overviews directly compete with and seek to replace online publishers 32) Oh WOW - in paragraph 121, Sussman dug up a pretty damning admission in a 2023 Google DeepMind presentation: Google admits Generative AI in search would "reduce referrals to content providers hurting their ability to monetize" 33) Lots of outside observers recognize the risk AI Overviews present to publishers. Footnotes cite @timsoulo among others 34) AI Overviews increase "zero click" searches 35) AI Overviews will cause a downward spiral in publishing quality - as the incentive to create gets less, quality degrades, and the whole web suffers 36) Google has put publishers in an awful position - by publishing content, they feed the very AI beast that is consuming publishers alive 27) Next, the complaint walks through the actual legal claims -- which, IMHO, are quite strong 28) First - "reciprocal dealing," an antitrust concept which "occurs when a firm with market power refuses to sell product X to a customer unless that customer agrees to sell (or give) product Y to it. In this case, the product Google is selling to (and threatening to withhold from) digital publishers is Search Referral Traffic." 29) Second - "monopoly maintenance." Basically argues that Google's use of AI constitutes a form of "rent extraction" on publishers. 30) Google is using AI to illegally entrench its search monopoly 31) Third - "Unjust enrichment" - which basically means Google has unfairly benefited at the expense of publishers via wrongful conduct. 32) "The value of Google’s models and AI products is directly related to the quality of the works that it acquires to train them and ground their outputs." 33) Finally - a recital of the counts: I - Reciprocal Dealing in Violation of Section 1 of the Sherman Act II - Reciprocal Dealing in Violation of Section 2 of the Sherman Act III - Tortious Conduct in Violation of Section 2 of the Sherman Act IV - Unlawful Monopoly Leveraging in Violation of Section 2 of the Sherman Act V - Unlawful Monopolization in Violation of Section 2 of the Sherman Act VI - Unlawful Attempted Monopolization in Violation of Section 2 of the Sherman Act VII - Common Law Unjust Enrichment 34) Lastly, Chegg's request for relief is of course damages and attorney fees, but also for a permanent injunction preventing Google from engaging in unlawful conduct 35) Chegg demands a jury trial ***link to complaint in next tweet*** My overall takeaway? This is a truly fantastic complaint. The only thing I think it missed is Google's admission in a blog post in summer 2023 that robots(.)txt is not a sufficient consent mechanism in the AI age. But, other than that, they really did their homework and hammered a ton of points I've been railing about for years. If you are a publisher - please share so others see! 👏👏👏