From lawsuits to lobbying: How publishers are fighting AI

The coalition already filed a complaint with the U.K. regulator Competition Markets Authority (CMA) and the European Commission in June and July, respectively, regarding Google’s introduction of AI Overviews and AI Mode in its search, alleging that it has excluded rival publishers and preferred its own answers in the search engine results.

​​“What’s crucial is that the current unlawfulness [of unauthorized content scraping] is stopped now that the opt out is provided, which means that you can say no to your data being crawled and remain in the Google search indexing so you’re not wiped off the internet,” Rosa Curling, a lawyer, co-founder and director of Foxglove, told Digiday in July. 

Since those earlier filings, the coalition has interviewed a range of publishers and gathered evidence of impact on traffic, impressions, click-through rates, revenue, and other metrics as a result of Google AI Overviews, per its letter to the DOJ, seen by Digiday. 

The evidence ranges from large publishers with millions of clicks a day to medium and smaller-sized publishers, the letter states, which also claims that some publishers are suffering traffic drops of up to 90 percent, which has resulted in them having to close their publications or drastically cut staff. 

Google has always maintained that it sends billions of clicks to websites and that its publishers can opt out of its AI search crawler. Google does technically separate its search crawler (Googlebot) and its AI crawler (Google-Extended), but in practice, they overlap. Even if a publisher blocks Google-Extended, their content can still show up in AI Overviews, because those are tied to Google Search.

“Our Search AI features are intentionally built to connect people to the web, and we continue to send billions of clicks to websites every day, unlike other companies. People’s preferences and habits are changing, and they’re seeking new types of content and new ways to search. We’re improving Search to address these changing needs while continuing to drive immense value to the ecosystem,” said a Google spokesperson.

It’s yet to be seen how the DOJ will respond. But it’s just the latest reminder that publishers aren’t letting up in their pushback against AI. The U.K.’s Professional Publishers Association has also been pressing the CMA to clamp down on Google’s AI Overviews and AI Mode, arguing that the lack of visibility and control over how these tools use publisher content is already harming their members’ traffic and business decisions. It has submitted detailed evidence to show the downward pressure on CTRs and page views, which it blames on AI Overviews and AI Mode. 

“Publishers on both sides of the Atlantic are seeing the same patterns: traffic declines linked to AI Overviews, opaque shifts in Google Discover, and no meaningful transparency from Google about how these systems work,” said Sajeeda Merali, CEO of the PPA in an email statement to Digiday. 

The evidence submitted to the DOJ mirrors what the PPA has been raising through the CMA’s Strategic Market Status process, she noted. “It’s vital that lawmakers and regulators understand the real-life impact of these issues on publishers, their audiences and revenues. Without clear data, proper accountability, and conduct requirements on dominant platforms, AI-driven search risks undermining the sustainability of trusted journalism,” she said.

Even infrastructure players like Cloudflare have joined the fight. CEO Matthew Prince personally met with the CMA in London in October to discuss the need to force Google to “play by the same rules” as other AI companies and fully separate its crawlers in a way that doesn’t have a knock-on effect on publishers’ rankings.

And there are other coalitions in play. Last month, a group lawsuit of 14 publishers scored a win after a judge refused to throw out their case, which accuses Canadian AI startup Cohere of lifting their journalism to train its large language model. Advance Local Media, Condé Nast, The Atlantic, Forbes Media, The Guardian, Business Insider, LA Times, Politico, and Vox Media are among the plaintiffs of the lawsuit, which was organized and filed on their behalf by the trade association News/Media Alliance. 

At the time of the win, News/Media Alliance CEO Danielly Coffey told Digiday that the joint lawsuit is indicative of the mood among publishers this year. “It is unprecedented collaboration in our industry right now — not just this lawsuit, but licensing collectively,” said Coffey at the time. “And it’s such a healthy balance, because you have individual, bilateral negotiations taking place, which is great, but at the same time, people are really coming together at scale where it’s appropriate to provide an efficient, pro-competitive solution.”

Meanwhile, Penske Media filed its own suit targeting Google’s AI Overviews in September, alleging the feature lifts and repackages journalism from titles like Rolling Stone and Variety without permission, and keeps users on Google instead of clicking through. And that in doing so it harms the company’s advertising, affiliate and subscription revenues.

While the tactics and legal arguments vary — from copyright complaints against Cohere to competition concerns about Google’s AI Overviews — the through-line is the same: publishers no longer want to be passive training data or traffic suppliers for AI products.

“The core issue is that Google is leveraging its adjudged search monopoly to train and substitute news and entertainment content with its own services and interests,” said Jason Kint, CEO of Digital Content Next. “Google’s anticompetitive behavior is wiping out the market for small and large content creators in the U.S. and abroad.”

Here are some of the additional points the Foxglove-Independent Publisher Alliance-MOW parties have included in their letter to the DOJ.

Overall, the evidence shows that:

• Publishers are suffering traffic decrease of up to 90% or more causing businesses to reduce staff and close publications. Some publishers have provided either screenshots or data feeds from Google Search Console and GA4. 
•  Google uses publisher materials for training their LLM models and delivering AI-generated answers since publishers have no real control over their content in Google Search and Google was able to unilaterally amend its terms and conditions so that any content scraped for Search could also be used for training its LLM.
• Publishers are reporting the “crocodile effect” where there is a growing gap between search impressions and clicks on a website, driven by AI-powered search engine features where publisher websites are appearing on the search engine results page but users are not clicking through to the underlying website due to the AI-powered answer.
• Google Search Console (free tool provided by Google for website owners to be able to track their websites’ clicks and impressions) does not segregate traffic from general search and AI Overviews and AI Mode. This lack of transparency is another form of abuse.