The Missing Fair Use Argument in the Copyright Battle Over AI Summaries

In 2025, much of the litigation over AI has focused on the use of protected content in AI overviews and summaries. Yet attention has largely remained focused on a set of earlier cases challenging the use of copyrighted works in model training. This is despite the fact that summaries are rapidly becoming the dominant use of AI, as seen in the explosive growth of tools like Perplexity and OpenAI’s search functions, and in Google’s AI Overviews becoming a fixture on the world’s most trafficked website.

The stakes for the future of AI are high, yet the legal issues in these cases have been under-explored.

Two of the lawsuits target Google for antitrust violations, alleging that publishers’ content is effectively compelled for inclusion in AI Overviews as a condition of search visibility. However, most of the cases assert that AI-generated summaries infringe copyright. Plaintiffs object to the scraping of their content for use in “retrieval augmented generation” (RAG), arguing that AI summaries can substantially reproduce protected works and divert traffic, thereby defeating any claim of fair use.

Courts have ruled on dismissal motions in three of these cases, reaching mixed conclusions on whether AI summaries are substantially similar to the underlying works. But no court has yet addressed the more fundamental question: even where summaries do resemble protected content, might they still qualify as fair use?