Posts Tagged: "artificial intelligence"

Artificial Intelligence (AI) is global, and copyright laws are national. Thus, some countries will have strict laws on making copies of copyrighted content to “train” an AI system while others will be more relaxed. Laws are about economics, and countries with more relaxed laws are likely to be countries with smaller creative industries and which wish to use the relaxed legal regime to attract AI investment. AI companies will use these jurisdictional differences as leverage to lobby for the relaxation of legal standards in countries with stricter laws.

As reported on IPWatchdog, the UK Supreme court recently ruled that a trained neural network (an Artificial Intelligence known as DABUS) could not be listed as the inventor on two patent applications filed by Dr. Stephen Thaler at the UK Intellectual Property Office (UKIPO). As a result, the two applications were treated as withdrawn for failing to comply with the requirements of the UK Patents Act 1977. This not a surprising decision for reasons that will be set out below, and it is consistent both with the earlier UK court decisions, and with the decisions of other jurisdictions around the world where Dr. Thaler has argued his case. The decision has, however, sparked interest in the questions of artificial intelligence and its ability both to “autonomously” devise inventions and to subsequently own them.

In the dynamic landscape of the legal industry, the winds of change are blowing stronger than ever, and the eye of the storm is centered on intellectual property (IP) practices. The catalyst for this transformation is the rapid diffusion of Generative Artificial Intelligence (GenAI) across industries. If we liken this to historical breakthroughs, the emergence of the internet 30 years ago pales in comparison, as GenAI’s impact is a staggering 100 times faster. The legal industry, once considered somewhat sheltered from disruptive forces, now finds itself at the epicenter of a tornado of change. This is particularly true for IP practices, where the intricacies of patent prosecution have long relied on intensive human involvement. As a partner entrusted with steering the strategy of your firm over the next decade, understanding the seismic shifts brought about by GenAI is paramount.

Today, U.S. Representatives María Elvira Salazar (R-FL) and Madeleine Dean (D-PA) introduced the No Artificial Intelligence Fake Replicas And Unauthorized Duplications (No AI FRAUD) Act of 2024 to create legal mechanisms by which Americans can prevent unauthorized uses of their likenesses and voices by generative AI platforms. The bill seeks to provide for intellectual property (IP) rights in an individual’s voice and likeness as well as remedies including statutory damages and disgorged profits.

On December 8, 2023, provisional agreement was reached between the European Union (EU) Parliament and the EU Council on the basic content of the new AI Regulation (the “AI Act”) to be implemented as legislation in the EU. The text is still not publicly available as it is subject to certain further refinement over the coming weeks. However, there is information available in the public domain (including press releases issued by the European Union) as to the likely format of the AI Act. Additional background on the legislative process towards the AI Act is available here.

Recent debates about AI patentability have focused on whether the outputs of an AI system, such as a neural network, can be patented. Such debates have been spurred not only by recent general advances in the power of AI but also by Dr. Stephen Thaler’s “Artificial Inventor” project’s attempts to obtain patents on devices generated using his neural network-based DABUS software. If you thought that whether an AI-generated output can be patented is a cutting-edge question, then consider whether an input to an AI system, such as a prompt to a large language model (LLM), can be patented.

From SAG-AFTRA strikes to the class action lawsuit of McKernan against Stability AI, Stability Diffusion and Midjourney, the creative industries are concerned with the ability of AI systems to produce outputs in the likeness of their original works. Earlier this year, a class action lawsuit against popular generative AI developers Stability AI, Midjourney, and DeviantArt was filed in the United States alleging copyright infringement. McKernan and others claimed that generative AI outputs have reproduced a significant portion of their original work.

On December 11, the Review Board of the U.S. Copyright Office (USCO) released a letter affirming the USCO’s refusal to register a work created with the use of artificial intelligence (AI) software. The decision to affirm the refusal marks the fourth time a registrant has been documented as being denied the ability to obtain a copyright registration over the output of an AI system following requests for reconsideration.

In September 2023, one man grabbed the authors’ attention with his astonishing story about defending his trademark registration from an opposition by professional trademark attorneys using ChatGPT. His months-long battle began in December 2022, less than a month after the public launch of the now infamous AI chatbot. Nine months later, Jamiel Sheikh — an entrepreneur, tech-guru, and adjunct professor — survived the pressure from formal proceedings and obtained a settlement from his opposer without spending a dime. As young trademark attorneys, we were horrified yet extremely curious about what he had done. This article is the result of speaking with Sheikh about his experience and the evolving needs and expectations of sophisticated legal service consumers.

Recently, Wen Xie argued on IPWatchdog that the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO) have reached different conclusions regarding “the creative and conceiving capabilities of machines,” which leads to intellectual property (IP) law being self-contradictory. According to Xie, the USCO presumes that artificial intelligence (AI) is creative, while the USPTO does not reach a similar conclusion regarding AI inventorship. I disagree.

Generative AI (“Gen AI”) is everywhere, with all sorts of promises about how it can help the world. Let’s say a company has created new confidential methods for cancer treatments, but they are not really effective. They ask a Gen AI to come up with a cure for cancer using these new methods.  The gen-AI (using the billions of words and images available to it beyond human comprehension) conceives of the cure, and it works, saving many lives. [Note: Generative AI (“Gen AI”) as used herein will refer to deep-learning models that can generate high-quality text, images or other content based on the billions of pieces of data they were trained on].

In today’s high-tech landscape, the ancient fable of the goose that laid the golden eggs imparts profound wisdom. The farmer in that tale weighed the decision to continue accumulating wealth slowly by selling the golden eggs that his magical goose laid (one per day) or taking a risk by killing the goose to harvest all of the gold within it at once. (Ultimately, the farmer chose the murderous path only to discover the goose did not contain any riches.) Just as the farmer faced thorny decisions in the tale, modern tech executives grapple with complex choices between immediate returns and long-term potential while also maintaining a competitive edge. In the real world, an artificial intelligence (AI) system that can generate patentable outputs (such as designs for new drugs) stands as the metaphorical “goose” while the inventions it produces are analogous to the “golden eggs.” Steadfastly guiding this delicate dance is the patent attorney with expertise in AI technology.

On October 30, President Joe Biden issued an executive order (EO) announcing a series of new agency directives for managing risks related to the use of artificial intelligence (AI) technologies. The EO prioritizes risks related to critical infrastructure, cybersecurity and consumer privacy but it does not establish clear directives on copyright issues related to generative AI platforms that have garnered much debate in Congress in recent months.

On September 6, OpenAI faced its second invasion of privacy lawsuit filed in the U.S. District Court for the District of Northern California, for allegedly stealing private information from millions of internet users. While the Plaintiffs acknowledge in their complaint that Artificial Intelligence (AI) has the potential to create life-saving technologies and herald discoveries that could improve our daily lives, they claim OpenAI crossed the line of using altruistic means of reaching its objective when it abruptly restructured itself into a for-profit business. Following this restructuring, the Plaintiffs allege OpenAI scraped private information from millions of users to train their Large Language Models. Here are five key allegations from the privacy suit against OpenAI.

Last week, the Writers Guild of America (WGA) reached a tentative three-year deal to resolve a writer’s strike following a labor dispute with the Alliance of Motion Picture and Television Producers (AMPTP). The deal was reached on September 27, 2023, after a 148-day strike, which was the second-longest in the union’s history. According to USA Today, the WGA’s leadership board has lifted the restraining order barring writers from returning to work, and its members will vote to officially ratify the agreement between October 2 and October 9. In a storyline that at one time would have been considered science fiction, a major point of contention between writers and producers was the use of artificial intelligence in the screenwriting process.