Tag: antitrust

Bankruptcy Shield as a Sword: The Startup Gets Acquired Without Being Acquired

The proposed sale of Spirit Airlines’ enormous internal dataset to Google exposes a potentially dangerous new loophole in the AI economy. Google won a bankruptcy auction with a $10 million bid for Spirit’s enterprise data and says the material could help improve its products and AI models. The corpus reportedly includes approximately 100 million emails, 500 million Microsoft Teams messages, software code, operational information and decades of business records. (Reuters)

But there is a threshold question that shouldn’t get lost in the excitement over turning bankrupt companies into AI training datasets: Did Spirit actually own everything it proposed to sell?

Possession Is Not Ownership

Springshot, a technology startup whose proprietary airline-operations platform was embedded in Spirit’s technology stack for its final three years, says potentially not. Springshot has objected that the sale agreement defines the dataset so broadly that it may encompass Springshot’s own intellectual property and proprietary information. It wants the bankruptcy court to require a forensic process separating Spirit’s property from property belonging to third parties before anything goes to Google. (Ars Technica)

Springshot founder Doug Kreuzkamp states the basic principle perfectly: “The possession of IP is not ownership.” After all, a debtor’s server is a container, not a chain of title. It may hold the debtor’s property alongside licensed technology, vendor trade secrets, confidential communications, employee information and intellectual property belonging to somebody else. Bankruptcy shouldn’t improve the debtor’s title.

Bankruptcy as a Sword

That becomes particularly important with AI because bankruptcy can potentially be transformed from a shield for a distressed debtor into a sword for the purchaser. The sequence is straightforward: Startup develops technology → licenses it to customer → technology and know-how become embedded in customer’s systems → customer fails → bankruptcy estate sells its “dataset” → AI company trains on the corpus.

The bankruptcy proceeding has now done something much more consequential than liquidating the debtor’s assets. It may have created an efficient mechanism for aggregating information and transferring it to an AI company for a new use. That’s the loophole.

The Startup Gets Acquired Without Being Acquired

And that’s where this becomes an antitrust problem. Springshot has spent roughly 15 years developing technology used to improve airline operations. Ars reports that Google recently announced a five-year partnership with Ryanair involving airline operational data and Gemini Enterprise—putting Google’s AI efforts in an area where Springshot itself operates. Springshot consequently fears that its proprietary information could end up helping a vastly larger company compete with it.

Think about the alternatives. Google could develop competing technology. It could license Springshot’s technology. It could partner with Springshot. It could potentially acquire Springshot.

Or, potentially: Buy the data estate of Springshot’s bankrupt customer in a bankruptcy auction. That last possibility is profoundly different. Google doesn’t acquire the startup. It potentially acquires what the startup knows. There is no acquisition price paid to the startup. No negotiated license. And no conventional acquisition of the competitor to scrutinize.

As Springshot warns, the precedent could allow large amounts of startup IP to migrate to enormously powerful companies through bankruptcy proceedings. In other words, the startup gets acquired without being acquired. And there may be nothing they can do about it.

A Competition Loophole

That makes the bankruptcy loophole a competition loophole. Startups necessarily expose substantial information to enterprise customers. Integration requires documentation, workflows, support communications, operational data and technical knowledge.

Normally contracts, confidentiality obligations, trade-secret law and property rights establish boundaries around that information. But if those boundaries become uncertain when the customer goes bankrupt, the economics of dealing with large enterprise customers change.

A startup could survive while its customer fails—only to discover that the customer’s bankruptcy estate proposes to sell information embodying the startup’s technology to a company with virtually unlimited resources. The customer went bankrupt, so why should the startup’s competitive advantage be liquidated with it?

Procedure Becomes the Product

There is a broader procedural inversion here. Large corporate defendants have long understood that legal procedures nominally directed against them can sometimes produce valuable affirmative rights. A class action, for example, is ostensibly a device for aggregating claims against a defendant. But settlement can also aggregate something enormously valuable for the defendant: releases and finality.

The procedure itself creates economic value. AI may give bankruptcy proceedings a similar secondary function. Bankruptcy ostensibly protects the debtor and organizes an orderly disposition of its property. Or that’s the party line. But to an AI company seeking enormous quantities of authentic enterprise data, bankruptcy can provide something else: Aggregation.

Instead of negotiating separately with every employee, contractor, vendor and technology supplier whose information resides in a company’s systems, the purchaser buys one enormous “dataset” from the estate. What began as the debtor’s shield risks becoming the purchaser’s sword.

De-Identification Doesn’t Fix Title

Google says it will not receive personal information, and Spirit’s dataset is supposed to undergo de-identification. That’s important for privacy, but it doesn’t resolve ownership. Anonymization is not assignment. Removing a person’s name doesn’t transfer a vendor’s trade secrets. And de-identifying employee communications doesn’t necessarily establish that they can be repurposed for AI training. Privacy, ownership, confidentiality and authorization are separate questions.

A Caution for Startups: Treat Customer Data Like Inventory in a Warehouse

There is a useful analogy here to secured lending. A bank lending against inventory does not assume that everything physically sitting in the borrower’s warehouse belongs to the borrower. It identifies the collateral, determines what rights the borrower actually has in it, perfects its security interest, and worries about priority, proceeds, commingling and property belonging to third parties. So the Spirit case highlight the need to think about creditworthiness as a material deal point.

AI startups may want to start thinking about their data in much the same way. A customer’s servers are increasingly the digital equivalent of the warehouse. They may contain customer-owned information alongside licensed technology, vendor trade secrets, proprietary workflows, confidential communications, derived data and other material the customer merely possesses. If the customer enters bankruptcy, the danger is that all of this gets swept into a broadly defined “enterprise dataset” and auctioned as though possession established ownership. It doesn’t.

That means startups should protect themselves before a customer’s financial distress ever arises. Contracts should clearly establish ownership, permitted uses, AI-training restrictions, return and deletion obligations, and what happens upon insolvency. Proprietary information should be identifiable and segregated where practicable, with sufficient provenance to establish what belongs to whom.

There may even be circumstances where traditional secured-credit techniques deserve consideration as additional protection. But the distinction is important: Ownership is the first line of defense: “That isn’t property of the bankruptcy estate.” A security interest is the second: “If it is property of the estate, our rights have priority.”

A startup generally wants to win the first argument. Carelessly taking a security interest in property the startup claims to own could muddy that position rather than strengthen it, so Article 9 protection requires careful drafting.

The larger caution is simple: Bankruptcy courts have spent generations distinguishing what is in a debtor’s warehouse from what the debtor actually owns. AI should not erase that distinction merely by replacing the warehouse with a server. For startups whose technology becomes embedded in customers’ systems, data-title planning may now need to become as routine as IP assignments, confidentiality provisions and cybersecurity. The time to establish ownership and provenance is before the customer’s servers—and everything sitting inside them—show up in a bankruptcy auction.

The Rule Should Be Simple

AI has transformed old corporate records from storage liabilities into valuable assets. Spirit’s data sale shows just how valuable: companies are bidding millions for records of how real humans communicate, solve problems and operate businesses. That makes it essential to get the rule right now. Before a bankruptcy court asks what is this dataset worth?, it should ask: What exactly did the debtor own?

Bankruptcy can transfer the debtor’s assets. It should not manufacture AI rights the debtor never possessed. And it certainly shouldn’t become a mechanism through which a dominant AI company can acquire the accumulated knowledge of a startup without ever acquiring the startup itself.

Ars Technica’s report on the Spirit/Springshot dispute

Anna’s Archive, Spotify, and the Shadow‑Library Playbook: Why Spotify is a Crime Scene

A pirate “preservation” collective best known for shadow libraries now claims to have scraped Spotify at industrial scale, releasing massive metadata dumps and hinting at terabytes of audio to follow. That alone would be alarming. But the deeper significance lies elsewhere: this episode mirrors the same shadow-library acquisition pipeline already at the center of major AI copyright cases like Bartz v. Anthropic and Kadrey v. Meta. It raises uncomfortable questions about Spotify’s security obligations to licensors, the chilling effect of its market power on enforcement, and whether centralized streaming platforms have quietly become the most valuable—and vulnerable—training datasets in the AI economy.  Spotify sold itself as the cure for BitTorrent piracy but may have become the back door for the next generation of AI scraping.

Anna’s Archive, a pirate-adjacent “preservation” collective best known for shadow‑library aggregation is now claiming it has scraped Spotify at scale starting before July 2025—releasing a metadata torrent and promising bulk release of audio files measured in the hundreds of terabytes.  Spotify has acknowledged unauthorized access, describing scraping of public metadata and illicit tactics used to circumvent DRM to access at least some audio files.

Here’s what Anna’s Blog said:

Spotify leakDownload

The immediate story will be framed as piracy. But for Spotify, the real exposure is corporate and contractual. As a public company, Spotify has to manage security and platform-risk disclosures in a way that doesn’t mislead investors, and it has to satisfy rightsholders that its delivery architecture meets the security commitments embedded in licensing practice. If tens of millions of full-length files and user-linked playlist metadata were extractable at scale, the question isn’t only who infringed—it’s whether Spotify’s controls, incident response, and contractual assurances withstand audit, cure, and reputational scrutiny.

This is not just a piracy story or corporate disclosure embarrassment for Spotify. It is a familiar pattern for anyone tracking the book‑dataset litigation side of generative AI: shadow libraries as industrial infrastructure.  And that sounds like billion with a B.

THE SHADOW‑LIBRARY PIPELINE: FROM BOOKS TO MUSIC

In the major AI copyright cases involving books like Bartz v. Anthropic and Kadrey v. Meta, the recurring issue has not merely been whether training is fair use, but how the training corpus was acquired in the first place. Allegations in cases such as Bartz v. Anthropic and Kadrey v. Meta focus on bulk ingestion of pirated works from shadow libraries such as LibGen, Z‑Library, and Anna’s Archive as an upstream act distinct from downstream model training and fair use.  It’s this ingestion issue that has Anthropic offering a $1.5 billion with a B settlement to authors (which itself is based on the 1999 statutory damages amendment to the Copyright Act that to deter…wait for it…CD ripping).

The Spotify scrape follows the same architectural logic. Swap “books” for “tracks” and the structure seems identical:  a centralized, mirrored corpus assembled outside the licensing system, optimized for scale, and perfectly suited for machine‑learning pipelines.  Voila.

THE ENTERPRISE TURN: AI ACCESS FOR A FEE

What distinguishes this moment is that shadow libraries are no longer operating solely as donation‑funded activist projects to save humanity. Anna’s Archive has openly described an enterprise‑style access tier, offering high‑speed bulk access to AI labs and other institutional users in exchange for large “donations.”  You know, to save humanity.  Ahem…

This AI connection reframes shadow libraries as industrial suppliers in my view. The Anna’s rhetoric may be preservation for the good of mankind, but whatever you believe the motives are, the product is dataset procurement—precisely the bottleneck facing AI developers seeking massive, curated, labeled corpora.

SPOTIFY’S SECURITY OBLIGATIONS — AND WHY MARKET POWER MATTERS

Spotify is not just a random consumer app. It is a licensed distribution platform bound by dense contractual obligations to labels, distributors, and other rightsholders. It likely has made substantial commitments to labels, particularly major labels and likely publishers, too regarding its security commitments.  Large‑scale scraping raises questions that go well beyond copyright:

• What controls existed to prevent automated extraction at scale?

• What anomaly detection or rate limiting failed?

• What representations were made to licensors and licensees about safeguarding licensed content?

Here, Spotify’s monopoly (or at least dominant) market power becomes its most effective shield. Even if licensors could plausibly argue that security covenants were breached, many are economically dependent on Spotify’s distribution and algorithmic visibility. Enforcement is chilled not by law, but by leverage.

THE DOG THAT DIDN’T BARK: USER DATA

Public reporting has focused on sound recording catalog metadata and audio files. But any incident involving large‑scale access naturally raises a secondary question: what else was accessible through the same pathways? There is no public confirmation that user data has been posted. But “not posted” is not the same as “not taken.”

Listening histories, playlists, device identifiers, or internal engagement metrics would be far more valuable off‑market than in a public torrent.

SPOTIFY’S SHAREHOLDERS SAY WASSUP?

Public reporting that Spotify’s systems were scraped at scale—whether limited to metadata or extending to audio—raises issues that go beyond piracy narratives and into material risk disclosure territory. Spotify is a licensed platform whose core business depends on representations to labels, distributors, and artists about safeguarding catalog integrity and platform security.

Allegations of large-scale scraping, DRM circumvention, or control failures may implicate not only contractual obligations but also cybersecurity risk factors that a reasonable investor could consider material.

Under SEC guidance on cybersecurity disclosures, companies are expected to disclose material risks and incidents, even where investigations are ongoing, if the nature and potential scope could affect operations, relationships, or revenue. The question is not whether piracy exists—it always has—but whether centralized control failures expose Spotify to rightsholder claims, regulatory scrutiny, or renegotiation pressure that could affect future earnings.

So far (and this may change any minute so stay informed), Spotify’s public statement in media outlets is something like this:

“An investigation into unauthorized access identified that a third party scraped public metadata and used illicit tactics to circumvent DRM to access some of the platform’s audio files. We are actively investigating the incident.”

Spotify is circling the wagons and this nonstatement statement tells you everything you need to know:  “Investigating” plus “some audio files” is classic damage control.  The spin does three things at once:  Narrows scope (“some audio files”) without committing to facts; deflects responsibility (“third party,” “illicit tactics”); avoids quantification (no numbers, no dates, no systems).  

But—there is no acknowledgment of scale or contradiction.  Spotify does not address Anna’s 86 million file / 300 TB claim; or Anna’s claim that files were Spotify-native OGG Vorbis; the presence of Spotify-specific file artifacts, the inclusion of playlist/user-linked data.  They don’t even say “the claims are inaccurate.” They just… don’t…engage.  

In fact, they never mention Anna’s Archive at all.  

“Not necessarily a breach” is a lawyerly non-answer.  By emphasizing that this may not represent a breach of internal infrastructure, Spotify leaves open: credential abuse, client-side exploitation, API misuse, session hijacking, DRM circumvention at the delivery layer which seems like it must have happened.  In other words: it doesn’t reassure anyone—investors, licensors, or regulators.

Let’s not forget—Anna’s Archive wrote this up in a detailed blog post that is PUBLISHED ON THE INTERNET.   People know about it.  It’s believable but rebuttable.  So rebut it.

That may be fine for one-day PR triage—but it’s not informative enough for me and it may not be for the SEC, either.  And I can’t imagine this is what they are telling the labels or publishers.

So while I was posting this, Billboard released a new statement from Spotify:

“Spotify has identified and disabled the nefarious user accounts that engaged in unlawful scraping. We’ve implemented new safeguards for these types of anti-copyright attacks and are actively monitoring for suspicious behavior. Since day one, we have stood with the artist community against piracy, and we are actively working with our industry partners to protect creators and defend their rights.”

Oh, well “new safeguards” solves everything. In the immortal words of Ronnie Scott, and now back to sleep. This public description indicates an account-based circumvention pathway (as opposed to a traditional server intrusion) and reinforces that the incident may involve large-scale extraction through consumer-facing mechanisms. That context heightens the importance of law enforcement inquiry into the scope of data accessed and retained, the representations made by the scraping entity about the nature and purpose of its collection, and the foreseeable downstream uses of redistributed audio and user-linked data.

Spotify’s subsequent statement that it identified and disabled “nefarious user accounts” points to an account-side extraction pathway (perhaps through an account farm) rather than a traditional server breach. While server-side compromises are generally considered more severe, account-based abuse is a well-known and operationally plausible vector for large-scale data extraction when distributed across many automated accounts over time. A corpus on the order of hundreds of terabytes as Anna claims could be exfiltrated in this manner without triggering immediate public disclosure, particularly if activity was geographically distributed and designed to mimic legitimate streaming behavior. The relevant question is therefore not whether such extraction was technically possible, but when it was detected, how it was scoped internally, and whether public representations accurately reflected the magnitude and nature of the activity.

The new statement is still kind of a nondenial denial that could have been written: “Spotify identified and disabled user accounts that unlawfully scraped its platform. Spotify implemented new safeguards against these anti-copyright attacks and is actively monitoring for suspicious behavior.”

But…from an SEC perspective, this new statement makes it harder for Spotify to treat the episode as purely hypothetical risk. They’ve acknowledged an “attack,” they disabled accounts, and they changed safeguards. That’s the kind of “known event” that can support 10-Q risk factor updates (and possibly more, depending on materiality and contractual fallout).

Near silence may be defensible in the very short term (and getting shorter with each passing moment), but prolonged opacity increases the risk that disclosure comes later, under less favorable conditions.

Even if they said something like this, they’d be better off:  

Spotify identified unauthorized access in which a third party scraped public metadata and used illicit tactics to circumvent DRM to access some of the platform’s audio files. Spotify is actively investigating the incident.

At least sentient beings could tell what in the world happened.

ENTER THE SECURITIES AND EXCHANGE COMMISSION

Understand that this is just postponing the inevitable in my view.  Spotify’s response is notable less for what it says than for what it avoids. By neither confirming nor rebutting the scale and technical specifics described by Anna’s Archive, the company leaves unresolved whether tens of millions of Spotify-delivered audio files were extractable at scale—and whether existing controls matched the assurances Spotify has long made to rightsholders, users, and investors.

This disclosure probably belongs in a SEC Form 10Q, but it could go in an 8-K which will attract a bunch more attention.  Form 8-K (Item 1.05 or 8.01) is likely only required if certain thresholds are met, mostly that Spotify deems the incident is deemed material to investors now, and there is a known impact (financial, operational, or contractual), not just investigation.

Given Spotify’s current public posture (“actively investigating,” “some audio files,” “safeguards”), an 8-K would usually be triggered only if they confirm large-scale audio extraction, licensor disputes or termination notices occur, regulatory action is initiated, or remediation costs or litigation exposure become quantifiable.

Right now, Spotify appears to be deliberately staying below the 8-K threshold, and I can’t say as I blame them. There’s no telling how much of Spotify’s share price is attributed (incorrectly in my view) to Spotify selling itself as a tech play, not a music play. The financial press has yet to pick up this story as of this writing, and most of Spotify’s press is in the “how do you manage your awesomeness” BS because the financial press never has understood the music business.

At this stage, the issue fits squarely in an SEC Form 10-Q risk-factor update rather than an 8-K: the company is acknowledging elevated platform and data-extraction risk without conceding a material event that requires immediate disclosure.  That could change.

That risk factor might look something like this:

Risks Related to Unauthorized Access, Data Extraction, and Platform Security

We rely on technical controls, contractual restrictions, and digital rights management technologies to protect our platform, our content catalog, and data derived from user and licensor activity. From time to time, third parties may attempt to circumvent these controls through unauthorized access, scraping, or other illicit techniques.

We have identified instances in which third parties have engaged in unauthorized access to certain platform data, including the scraping of public metadata and the circumvention of technological measures designed to protect audio files. While we are actively investigating the scope and impact of such activity and implementing remedial measures, unauthorized access could expose us to reputational harm, regulatory scrutiny, contractual disputes with licensors, litigation, and increased costs associated with security enhancements and enforcement efforts.

In addition, even where extracted data does not include sensitive personal information, large-scale aggregation of platform data—particularly content files or behaviorally derived metrics—may be repurposed by third parties in ways that we cannot control, including for analytics, competitive modeling, or artificial intelligence training. Such downstream uses could adversely affect our relationships with licensors, artists, and other stakeholders, and may give rise to additional legal, regulatory, or commercial risks.

Any failure, or perceived failure, to prevent or respond effectively to unauthorized access or misuse of our platform could materially and adversely affect our business, financial condition, results of operations, or prospects.

THE FINAL IRONY: FROM BITTORRENT TO AI BACK DOOR

Daniel Ek built Spotify in the long shadow of peer‑to‑peer piracy. Spotify’s founding pitch to the music industry was explicit: centralized licensed access would replace BitTorrent as the dominant mode of music consumption. Spotify was sold as an anti‑piracy intervention right along with its fixed prices and shite royalty.

That argument persuaded rightsholders to centralize their catalogs inside a single platform. If you’ve ever sat in a major label marketing meeting, it’s like there are no platforms outside of Spotify.

As of today, Spotify has a huge target on its back.  It represents one of the largest curated music corpora ever assembled—the precise object desired by pirate “archivists” and AI developers alike. And the allegation on the table is not marginal leakage, but industrial‑scale scraping that somehow did not get noticed by Spotify.  Or so we are expected to believe.

At the same time, Ek has repositioned himself as a major AI and defense‑sector investor, backing companies like Helsing that frame artificial intelligence as strategic infrastructure for fully automated weapons (which are likely a violation of the Geneva Convention as I have discussed with you before). The AI sector’s most valuable input is not code, but data—large, clean, labeled datasets.

The same founder who persuaded the music industry to centralize its catalog inside Spotify as a solution to piracy now presides over a platform alleged to have left a back door open for the next extraction regime: AI scraping at scale.

Piracy did not disappear.

It centralized.

It professionalized.  

And now, it has an enterprise pricing tier.

Fasten your seatbelts.

Google’s “AI Overviews” Draws a Formal Complaint in Germany under the EU Digital Services Act

A coalition of NGOs, media associations, and publishers in Germany has filed a formal Digital Services Act (DSA) complaint against Google’s AI Overviews, arguing the feature diverts traffic and revenue from independent media, increases misinformation risks via opaque systems, and threatens media plurality. Under the DSA, violations can carry fines up to 6% of global revenue—a potentially multibillion-dollar exposure.

The complaint claims that AI Overviews answer users’ queries inside Google, short-circuiting click-throughs to the original sources and starving publishers of ad and subscription revenues. Because users can’t see how answers are generated or verified, the coalition warns of heightened misinformation risk and erosion of democratic discourse.

Why the Digital Services Act Matters

As I understand the DSA, the news publishers can either (1) lodge a complaint with their national Digital Services Coordinator alleging a platform’s DSA breach (triggers regulatory scrutiny);  (2) Use the platform dispute tools: first the internal complaint-handling system, then certified out-of-court dispute settlement for moderation/search-display disputes—often faster practical relief; (3) Sue for damages in national courts for losses caused by a provider’s DSA infringement (Art. 54); or (4) Act collectively by mandating a qualified entity or through the EU Representative Actions Directive to seek injunctions/redress (kind of like class actions in the US but more limited in scope). 

Under the DSA, Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs) are services with more than 45 million EU users (approximately 10% of the population). Once formally designated by the European Commission, they face stricter obligations than smaller platforms: conducting annual systemic risk assessments, implementing mitigation measures, submitting to independent audits, providing data access to researchers, and ensuring transparency in recommender systems and advertising. Enforcement is centralized at the Commission, with penalties up to 6% of global revenue. This matters because VLOPs like Google, Meta, and TikTok must alter core design choices that directly affect media visibility and revenue.In parallel, the European Commission/DSCs retain powerful public-enforcement tools against Very Large Online Platforms. 

As a designated Very Large Online Platform, Google faces strict duties to mitigate systemic risks, provide algorithmic transparency, and avoid conduct that undermines media pluralism. The complaint contends AI Overviews violate these requirements by replacing outbound links with Google’s own synthesized answers.

The U.S. Angle: Penske lawsuit

A Major Publisher Has Sued Google in Federal Court Over AI Overview

On Sept. 14, 2025, Penske Media (Rolling Stone, Billboard, Variety) sued Google in D.C. federal court, alleging AI Overviews repurpose its journalism, depress clicks, and damage revenue—marking the first lawsuit by a major U.S. publisher aimed squarely at AI Overviews. The claims include an allegation on training-use claiming that Google enriched itself by using PMC’s works to train and ground models powering Gemini/AI Overviews, seeking restitution and disgorgement. Penske also argues that Google abuses its search monopoly to coerce publishers: indexing is effectively tied to letting Google (a) republish/summarize their material in AI Overviews, Featured Snippets, and AI Mode, and (b) use their works to train Google’s LLMs—reducing click-through and revenues while letting Google expand its monopoly into online publishing. 

Trade Groups Urged FTC/DOJ Action

The News/Media Alliance had previously asked the FTC and DOJ to investigate AI Overviews for diverting traffic and ‘misappropriating’ publishers’ investments, calling for enforcement under FTC Act §5 and Sherman Act §2.

Data Showing Traffic Harm

Industry analyses indicate material referral declines tied to AI Overviews. Digital Content Next reports Google Search referrals down 1%–25% for most member publishers over recent weeks; Digiday pegs impacts as much as 25%. The trend feeds a broader ‘Google Zero’ concern—zero-click results displacing publisher visits.

Why Europe vs. U.S. Paths Differ

The EU/DSA offers a procedural path to assess systemic risk and platform design choices like AI Overviews and levy platform-wide remedies and fines. In the U.S., the fight currently runs through private litigation (Penske) and competition/consumer-protection advocacy at FTC/DOJ, where enforcement tools differ and take longer to mobilize.

RAG vs. Training Data Issues

AI Overviews are best understood as a Retrieval-Augmented Generation (RAG) issue. Readers will recall that RAG is probably the most direct example of verbatim copying in AI outputs. The harms arise because Google as middleman retrieves live publisher content and synthesizes it into an answer inside the Search Engine Results Page (SERP), reducing traffic to the sources. This is distinct from the training-data lawsuits (Kadrey, Bartz) that allege unlawful ingestion of works during model pretraining.

Kadrey: Indirect Market Harm

A RAG case like Penske’s could also be characterized as indirect market harm. Judge Chhabria’s ruling in Kadrey under U.S. law highlights that market harm isn’t limited to direct substitution for fair use purposes. Factor 4 in fair use analysis includes foreclosure of licensing and derivative markets. For AI/search, that means reduced referrals depress ad and subscription revenue, while widespread zero-click synthesis may foreclose an emerging licensing market for summaries and excerpts. Evidence of harm includes before/after referral data, revenue deltas, and qualitative harms like brand erasure and loss of attribution. Remedies could include more prominent linking, revenue-sharing, compliance with robots/opt-outs, and provenance disclosures.

I like them RAG cases.

The Essential Issue is Similar in EU and US

Whether in Brussels or Washington, the core dispute is very similar: Who captures the value of journalism in an AI-mediated search world? Germany’s DSA complaint and Penske’s U.S. lawsuit frame twin fronts of a larger conflict—one about control of distribution, payment for content, and the future of a pluralistic press. Not to mention the usual free-riding and competition issues swirling around Google as it extracts rents by inserting itself into places it’s not wanted.

How an AI Moratorium Would Preclude Penske’s Lawsuit

Many “AI moratorium” proposals function as broad safe harbors with preemption. A moratorium to benefit AI and pick national champions was the subject of an IP Subcommittee hearing on September 18. If Congress enacted a moratorium that (1) expressly immunizes core AI practices (training, grounding, and SERP-level summaries), (2) preempts overlapping state claims, and (3) channels disputes into agency processes with exclusive public enforcement, it would effectively close the courthouse door to private suits like Penske and make the US more like Europe without the enforcement apparatus. Here’s how:

Express immunity for covered conduct. If the statute declares that using publicly available content for training and for retrieval-augmented summaries in search is lawful during the moratorium, Penske’s core theory (RAG substitution plus training use) loses its predicate.
No private right of action / exclusive public enforcement. Limiting enforcement to the FTC/DOJ (or a designated tech regulator) would bar private plaintiffs from seeking damages or injunctions over covered AI conduct.
Antitrust carve-out or agency preclearance. Congress could provide that covered AI practices (AI Overviews, featured snippets powered by generative models, training/grounding on public web content) cannot form the basis for Sherman/Clayton liability during the moratorium, or must first be reviewed by the agency—undercutting Penske’s §1/§2 counts.
Primary-jurisdiction plus statutory stay. Requiring first resort to the agency with a mandatory stay of court actions would pause (or dismiss) Penske until the regulator acts.
Preemption of state-law theories. A preemption clause would sweep in state unjust-enrichment and consumer-protection claims that parallel the covered AI practices.
Limits on injunctive relief. Barring courts from enjoining covered AI features (e.g., SERP-level summaries) and reserving design changes to the agency would eliminate the centerpiece remedy Penske seeks.
Potential retroactive shield. If drafted to apply to past conduct, a moratorium could moot pending suits by deeming prior training/RAG uses compliant for the moratorium period.

A moratorium with safe harbors, preemption, and agency-first review would either stay, gut, or bar Penske’s antitrust and unjust-enrichment claims—reframing the dispute as a regulatory matter rather than a private lawsuit. Want to bet that White House AI Viceroy David Sacks will be sitting in judgement?