Google agrees to end sketchy negotiations based on flat rates and limited data.
Google has agreed to pay 250 million euros (about $273 million) to settle a dispute in France after breaching years-old commitments to inform and pay French news publishers when referencing and displaying content in both search results and when training Google’s AI-powered chatbot, Gemini.
According to France’s competition watchdog, the Autorité de la Concurrence (ADLC), Google dodged many commitments to deal with publishers fairly. Most recently, it never notified publishers or the ADLC before training Gemini (initially launched as Bard) on publishers’ content or displaying content in Gemini outputs. Google also waited until September 28, 2023, to introduce easy options for publishers to opt out, which made it impossible for publishers to negotiate fair deals for that content, the ADLC found.
“Until this date, press agencies and publishers wanting to opt out of this use had to insert an instruction opposing any crawling of their content by Google, including on the Search, Discover and Google News services,” the ADLC noted, warning that “in the future, the Autorité will be particularly attentive as regards the effectiveness of opt-out systems implemented by Google.”
To address breaches of four out of seven commitments in France—which the ADLC imposed in 2022 for a period of five years to “benefit” publishers by ensuring Google’s ongoing negotiations with them were “balanced”—Google has agreed to “a series of corrective measures,” the ADLC said.
Google is not happy with the fine, which it described as “not proportionate” partly because the fine “doesn’t sufficiently take into account the efforts we have made to answer and resolve the concerns raised—in an environment where it’s very hard to set a course because we can’t predict which way the wind will blow next.”Advertisement
According to Google, regulators everywhere need to clearly define fair use of content when developing search tools and AI models, so that search companies and AI makers always know “whom we are paying for what.” Currently in France, Google contends, the scope of Google’s commitments has shifted from just general news publishers to now also include specialist publications and listings and comparison sites.
The ADLC agreed that “the question of whether the use of press publications as part of an artificial intelligence service qualifies for protection under related rights regulations has not yet been settled,” but noted that “at the very least,” Google was required to “inform publishers of the use of their content for their Bard software.”
Regarding Bard/Gemini, Google said that it “voluntarily introduced a new technical solution called Google-Extended to make it easier for rights holders to opt out of Gemini without impact on their presence in Search.” It has now also committed to better explain to publishers both “how our products based on generative AI work and how ‘Opt Out’ works.”
Google said that it agreed to the settlement “because it’s time to move on” and “focus on the larger goal of sustainable approaches to connecting people with quality content and on working constructively with French publishers.”
“Today’s fine relates mostly to [a] disagreement about how much value Google derives from news content,” Google’s blog said, claiming that “a lack of clear regulatory guidance and repeated enforcement actions have made it hard to navigate negotiations with publishers, or plan how we invest in news in France in the future.”
What changes did Google agree to make?
Google defended its position as “the first and only platform to have signed significant licensing agreements” in France, benefiting 280 French press publishers and “covering more than 450 publications.”Advertisement
With these publishers, the ADLC found that Google breached requirements to “negotiate in good faith based on transparent, objective, and non-discriminatory criteria,” to consistently “make a remuneration offer” within three months of a publisher’s request, and to provide information for publishers to “transparently assess their remuneration.”
Google also breached commitments to “inform editors and press agencies of the use of their content by its service Bard” and of Google’s decision to link “the use of press agencies’ and publishers’ content by its artificial intelligence service to the display of protected content on services such as Search, Discover and News.”
Regarding negotiations, the ADLC found that Google not only failed to be transparent with publishers about remuneration, but also failed to keep the ADLC informed of information necessary to monitor whether Google was honoring its commitments to fairly pay publishers. Partly “to guarantee better communication,” Google has agreed to appoint a French-speaking representative in its Paris office, along with other steps the ADLC recommended.
According to the ADLC’s announcement (translated from French), Google seemingly acted sketchy in negotiations by not meeting non-discrimination criteria—and unfavorably treating publishers in different situations identically—and by not mentioning “all the services that could generate revenues for the negotiating party.”
“According to the Autorité, not taking into account differences in attractiveness between content does not allow for an accurate reflection of the contribution of each press agency and publisher to Google’s revenues,” the ADLC said.
Also problematically, Google established a minimum threshold of 100 euros for remuneration that it has now agreed to drop.
This threshold, “in its very principle, introduces discrimination between publishers that, below a certain threshold, are all arbitrarily assigned zero remuneration, regardless of their respective situations,” the ADLC found.
The ADLC concluded that Google’s decision to pay out “lump sums” with regard to indirect revenues owed to publishers “limited indirect revenues to a marginal share in the calculation of its financial offers” when in actuality “indirect revenues represented the biggest share of revenues derived from the display of protected content on its services.” Google also was making calculations based on a sample of 1 percent of traffic, which “reflects potentially less than 1 percent of total revenue,” the ADLC said. As part of the settlement, Google agreed to now base calculations on 100 percent of traffic.
“Google will explain to publishers how their individual offers were calculated,” the ADLC said. “Google will add detailed explanations to its offers on how they were individually calculated.”
To make negotiations fairer, Google will, moving forward, replace “data from SimilarWeb with its own impression data” when “calculating the amounts offered to publishers.” It will also no longer use flat rates to calculate “other direct income,” instead accurately reflecting the economic benefit derived from displaying the content. This benefit could include a publisher’s content triggering a subsequent search or leading a user to spend more time on the search engine and thus generating more personal data for Google.
“Google will provide additional information to publishers in order to enable them to effectively evaluate their offer,” the ADLC’s explanation of corrective measures said. “Google will expand the scope and level of detail of information provided to publishers,” including “as far as Bard is concerned.”
Google has agreed to make all these changes and more, only warning that one proposed change—recommending that Google “calculate direct revenues on an adjusted basis taking into account the position” of the content displayed in search results—might “result in a reduction in payments to publishers.”Advertisement
“Google therefore does not recommend this approach,” but “defers” to the ADLC “on this point.”
Google’s chatbot changes come amid global copyright fights
While publishers around the world have been questioning how much of their content was used to train AI models—and power AI tools from Google’s Gemini to OpenAI’s ChatGPT—French publishers will soon know exactly how Gemini references their content.
“Google will provide publishers and news agencies” with a narrative summary detailing how Google uses publications’ content to operate Gemini in France. The tech giant will also provide more information on how publishers can control how their content is used to power Gemini—from AI model training to Gemini’s outputs.
“This information will also explain how publishers can” opt out of use of content for AI tools, what “the effects of such an ‘opt-out'” would be, and what limitations “can apply,” the ADLC said. Opting out of AI content uses cannot impact publishers’ deals with Google, the ADLC warned.
France isn’t the only country watching how platforms treat publishers’ news content. Spain’s competition watchdog started investigating Google last year for “alleged anti-competitive practices affecting news agencies and press publications,” Aljazeera reported.
And in the US, The New York Times and other publishers have sued OpenAI and Microsoft over copyrighted content used to train AI models powering ChatGPT, Copilot, and ChatGPT’s “Browse with Bing.”
Most recently, The Times has opposed Microsoft’s motion to dismiss—which argued that the Supreme Court’s VCR ruling should doom NYT’s OpenAI lawsuit. The Times claimed that Microsoft and OpenAI have “misappropriated almost a century’s worth of copyrighted content without paying fair compensation” to publishers, asking the court to deny Microsoft’s motion to dismiss in its entirety, or else give leave for the NYT to amend claims.
