Judge Calls Google's AI Content Use "Deeply Unfair" in Publisher Antitrust Hearing

A federal judge pressed Google attorneys Tuesday over whether the company's search monopoly allows it to exploit publisher content for AI answers without compensation — calling the situation "really unfair."

The exchange unfolded during a hearing in Penske Media's antitrust lawsuit against Google over its AI Overviews feature. Judge Amit Mehta — the same judge who previously ruled Google operates an illegal search monopoly — is currently deciding whether to grant Google's motion to dismiss the case. His pointed questions and skeptical commentary suggest Penske's legal theory is receiving serious judicial consideration.

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What Happened in the Courtroom

The Tuesday hearing centred on a fundamental question: does Google's established monopoly in search give it an unfair advantage in acquiring publisher content for AI training and AI-generated answers — all without paying a dime?

Jason Kint, CEO of Digital Content Next (DCN), a trade association representing digital content creators, attended the hearing and detailed the proceedings in a series of posts on social media.

According to Kint, Google's attorneys characterised AI Overviews as a "product improvement" and described the longstanding arrangement between Google and publishers — where publishers allow crawling in exchange for search traffic — as a "vague historical course of dealing."

That framing did not land well with the judge. Kint reported that Mehta pushed back directly, stating the situation was deeply unfair to publishers. Mehta went further, noting that publishers lack meaningful control over how Google uses their content and described Google's AI feature as being built "on the backs of the publishers." Critically, he stated that product improvements "are not immune from antitrust scrutiny" — a comment that directly undercuts Google's central defence.

This case arrives at a moment when the broader risks and challenges of AI adoption in business are already under intense public and regulatory debate, making the court's scrutiny of Google's practices all the more significant.

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The Opt-Out Problem Publishers Face

A Choice That Isn't Really a Choice

Google has maintained that publishers retain a choice. They can opt out of having their content used for AI training and can now also exclude themselves from AI Mode and AI Overviews. Google's legal filings have framed Penske's lawsuit as a demand for Google to halt the natural evolution of its search product.

But that opt-out option comes with a steep cost. If Google increasingly surfaces AI Overviews instead of traditional blue links, opting out means sacrificing whatever traffic AI features deliver. That traffic is already significantly less than what the traditional ten-link search results once provided. For publishers already watching referral traffic decline sharply, the choice between feeding Google's AI or going dark in search results is hardly a free one.

Mehta appeared to recognise this dynamic. His questioning reflected an understanding that publishers are structurally constrained by Google's dominance — unable to say no without accepting serious commercial consequences.

What This Means for Content Visibility

For businesses and publishers that have long relied on organic search as a primary audience channel, this structural constraint is not an abstract legal concern — it is an operational reality. Understanding how Google's tools and search ecosystem affect business growth has never been more important, particularly as AI Overviews continue to displace traditional search results at scale.

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Google's Advantage Over AI Competitors

A Market Is Forming — and Google Isn't Paying to Participate

One of the most striking moments in the hearing involved a direct comparison between Google and its AI competitors. Judge Mehta observed that a market is clearly forming for generative AI content inputs — and that other companies are paying to participate in it.

Kint reported the judge's observation: Penske pointed to OpenAI and Perplexity as Google competitors that pay publishers for content access. Google, by contrast, allegedly uses its search monopoly to obtain the same content at zero cost — a dynamic Penske argues raises rivals' costs and creates barriers to entry for competing AI platforms.

This line of questioning is significant. It signals that Mehta may be evaluating whether Google's behaviour in the AI content space is an extension of the same monopoly power identified in the 2024 United States v. Google antitrust ruling. That prior finding now hangs over this case like a shadow.

The Broader Implications for AI and Content Rights

The Penske lawsuit has been ongoing since September 2025. Mehta has not yet ruled on the motion to dismiss. But his comments Tuesday suggest the case is unlikely to end at this stage.

Google's product-improvement argument — that AI Overviews is simply search getting better — faces a judge who has already demonstrated willingness to scrutinise how the company exercises its market power. The suggestion that product improvements carry automatic antitrust immunity appears to be a position Mehta is not prepared to accept.

As artificial intelligence continues to reshape how information is found and consumed, questions of content ownership, compensation, and competitive fairness are moving from editorial debate into courtrooms — with potentially far-reaching consequences for every organisation that produces digital content.

What Comes Next for Publishers and the Digital Media Industry

For publishers and the broader digital media industry, the outcome of this case could reshape the rules governing how AI companies access and monetise content. The hearing marks one more chapter in a growing legal reckoning over who pays — and who profits — as search transforms from a directory into an answer engine.

• Publishers and content creators should monitor this case closely. A ruling against Google's motion to dismiss could open pathways to compensation for AI use of editorial content.
• Businesses dependent on search traffic should begin diversifying their audience acquisition strategies now rather than waiting for legal outcomes that may take years to resolve.
• Digital marketers and SEO professionals should factor the ongoing legal uncertainty around AI Overviews into their content and visibility strategies as the search landscape continues to shift.