I’m Alan Chapell. I’ve had the pleasure of serving as outside privacy counsel to hundreds of digital media companies. I write a monthly syndicated business intelligence report called The Chapell Regulatory Insider, and I’m also a regulatory analyst for The Monopoly Report.

The latest Monopoly Report podcast is out! This week, I welcome AI ethicist and governance pro Shoshana Rosenberg, who describers her framework for addressing the legal and regulatory risks involving AI. Given all the new AI and profiling rules flowing down into the ads space in 2026, Shoshana is exactly the person we should all be listening to right now.

AI Content Marketplaces Are Almost a Great Idea

I recently started taking a closer look at AI content marketplaces as a way to ensure that publishers get paid for their work. And now with Microsoft and Amazon entering the field, the concept seems to be really taking off.

What’s a Content Marketplace?

An AI content marketplace is a platform that connects content creators and publishers with artificial intelligence companies seeking training data or real-time content access. These marketplaces are designed to function as intermediaries, handling the technical, legal, and financial complexities of licensing digital content for AI applications. Ari Paparo went into more detail here and even talked about it on his podcast here.

The current approach of web scraping allows AI companies like OpenAI and Google to access content without compensation, creating economic friction and legal uncertainty around copyright and fair use. AI marketplaces are designed resolve this by providing structured licensing mechanisms.

But here’s the thing: All of this is pretty academic unless there’s a way to compel AI companies to actually pay for content. As of today, most of them ignore robots.txt, and Google uses its market power to force publishers into the Hobson’s choice of giving up traffic or giving up their IP.

Something, Something… Cow’s Milk?

This is a rather obvious statement, but it occurs to me that few are willing to pay for something they can get for free. In that light, resolution of this problem requires one of the following:

1. Collective action: Publisher coalitions refusing Google's bundled terms en masse (lol)

2. Competitive pressure: A viable search alternative that doesn't bundle AI training, forcing Google to change policy (Thanks, Judge Mehta!)

3. Technical solutions: The tools Cloudflare is building are certainly interesting and can no doubt make it more difficult for AI scrapers to collect data. Very helpful for sure. However, those types of tools are only going to take publishers so far. And it seems to me that last thing publishers want is to be in a technical arms race with the richest companies in the world. What’s more, these solutions don’t really address the problem of having the dominant search engine leverage your acceptance of their AI bots as a precondition of your obtaining search traffic.

4. Regulatory intervention: Laws, regulations, or competition enforcement that requires separate permissions for search indexing versus AI training (similar to EU AI Act proposals) would go a long way toward solving this problem.

In my view, the approaches that seem remotely viable today involve some flavor of regulatory intervention to stop or at least slow down the AI companies. I thought it’d be interesting to take a look at some of the options.

As such, we’re back on the Big Tech Regulatory Flywheel, kids!

Editor’s Note: Yeah, I know it’s not nearly as pithy a phrase as “everything is an ad network” or “enshittification”, but the Big Tech Regulatory Flywheel (BTRF) is a pretty damn apt description of where we are these days.

Option 1: U.S. DOJ Antitrust Team

As you may remember, the DOJ’s initial proposed remedies against Google included a requirement that would prohibit Google from merging its search indexing function with its AI indexing function. We all know where that idea went. Maybe the DOJ will attempt to come after Google search again, but it’s difficult to imagine it happening in the near term now that the two people leading the charge over there (Gail Slater and Mark Hamer) are out at the DOJ.

Option 2: UK Competition and Markets Authority

The UK CMA has done a remarkably thorough job of outlining all of the challenges Google is creating in the marketplace. It’s really some great work.

But just as it did with the Privacy Sandbox, the UK CMA has once again given Google the power to dictate the process by which Google addresses the CMA’s competitive concerns (which is great for Google but will severely limit any positive impact to be realized by publishers and other marketplace participants).

For example, the CMA measures with respect to Google’s merging its search index function with its AI index function are designed to create rules for what Google may do with the data after it is collected; they are not designed to allow publishers to prevent Google from collecting the data in the first place.

Option 3: U.S. Congress

As covered by Digiday, the IAB is floating a Congressional bill designed to give publishers more surface area when combatting AI scrapers. Publishers are mostly limited to copyright law when seeking remedies for scraping. I’d imagine that this type of law would bolster some of the recent lawsuits coming from Penske and others.

Don’t get me wrong: I applaud the effort. But a few thoughts:

1. We are currently in what amounts to a worldwide moratorium on doing anything to slow the momentum of AI companies—an effort being spearheaded by the U.S. In light of that, it’s difficult believe that this Congress is going to push forward this type of law. Thinking otherwise would involve some real Chuck Schumer energy, folks.

2. The bill would still necessitate that publishers engage in expensive litigation, which is something that only the top-tier publishers will have the resources to do effectively.

3. I’ll bet you a nickel that if this law were to pass, it wouldn’t be Google that got dinged; it would be some AI-infused contextual adtech firm.

4. I’d be curious to see a Venn diagram of those who (a) oppose a private right of action for privacy laws and (b) favor this publisher right of action. Cue: Tina Turner (“We don’t need more litigation.”)

Option 4: Can the EU Commission Save Publishers?

This past December, the EU Commission announced that it opened a formal antitrust investigation to assess whether Google breached EU competition rules by using the content of web publishers, as well as content uploaded on the online video-sharing platform YouTube, for AI purposes. The investigation will take a look at whether Google is distorting competition by imposing unfair terms and conditions on publishers and content creators, or by granting itself privileged access to such content, thereby placing developers of rival AI models at a disadvantage.

The EU Commission process is still in its early stages, so it’s hard to make many predictions. What’s interesting about this effort is that it also includes YouTube, which raises the possibility of the EU Commission examining the competitive fairness of the relationships that other platforms have with their content creators.

What Are the Other Options?

If you have any ideas, I’m all ears. I’ll be speaking at RampUp (SF), MarketectureLive (NYC), and Prebid Ascent (London) over the next few weeks. Be sure to say hello - or ping me if you want to setup a time to hear about my latest insights…

EVENTS

Marketecture Live III

March 10-11 at The Glasshouse, NYC

If there’s an area that you want to see covered on these pages, if you agree/disagree with something I’ve written, if you want to tell me you dig my music, or if you just want to yell at me, please reach out to me on LinkedIn or in the comments below.