It is almost impossible to turn on the news or read an article these days without seeing a mention of artificial intelligence. AI has already changed the way that many do business, and much more drastic developments are on the way. People are speculating about the future, which seems to unfold more every day.
One recent IBM survey found that more than two-thirds of United States companies are using or are considering some form of AI in their business. Investment in the field is nearing $100 billion, and many experts are saying that AI is here to stay. AI seems to be the present and the future, as it is hard to put the genie back into the bottle once it has been opened. Nonetheless, you should be prepared to face a diverse variety of legal issues and a period of uncertainty.
At Traverse Legal, our attorneys can help you navigate this environment to protect yourself legally and be in a position to pursue opportunities in this burgeoning field. The complexities of AI require that you have an attorney with specific experience to provide the most effective legal services.
Here are some ways that businesses are using AI in their everyday operations.
Businesses may design their own technology to effectively use and leverage AI, or they may purchase a ready-made solution. Regardless of how companies incorporate AI into their business, there will be different legal issues that they are used to from their operations before AI.
AI promises to be an engine of economic growth, but there are novel legal challenges now coming to the fore. With the technology having emerged largely in the last decade, many users do not yet know all the legal issues involved and how a court may decide litigation. In any emerging business area, the help of an experienced attorney is crucial. Traverse Legal LLC can work with your business on the myriad of AI-related issues that you may face.
Intellectual property issues can take on a number of forms with regard to AI. You may have an existing patent, copyright, or trademark and have found that someone else has infringed upon your rights.
Creative AI is the next frontier for technology. The headlines have been filled with stories about ChatGPT, and how companies are using it to automatically generate content. Some people are even using AI to generate articles and songs. The problem is that AI-created content uses existing content to generate an output. The AI content could impermissibly “borrow” large parts of a copyrighted work and cause intellectual property headaches.
Here are some other intellectual property challenges that businesses using AI have faced:
Federal law and regulations have not yet clarified how intellectual property rights will work with respect to AI. Until then, there may be a patchwork of interpretations by government agencies and courts without any specific law to apply.
The Copyright Office has considered numerous applications to register a copyright for AI-generated content. At a minimum, the Copyright Office would seem to require some level of human creative input into the finished product. At this time, the Copyright Office has not determined what the level is. You would need the help of an experienced intellectual property lawyer to help you marshal the most persuasive arguments when you apply for the protection of your work.
The nature of AI makes it more likely that someone can take copyrighted material and use it for their own benefit, even if they do not do it intentionally. You must take firm and quick action to protect your own property rights that can include:
Right now, owners of content have filed a flurry of lawsuits against companies that provide AI software, claiming that their tools scraped the internet for copyrighted content and facilitated violations of their rights. Some content generated by AI has been found to be simply plagiarized. If you use AI-related technology, you should be aware that you could face these allegations.
Even if intellectual property rights are not clearly defined, you should enforce your own rights as vigorously as possible with the help of an attorney. At Traverse Legal, we are experienced in complex IP matters, and we understand how established principles of the law should apply to AI. However, until federal copyright laws are clarified, you can expect the possibility of continuous litigation. Our attorneys can help when you need to go to court.
AI can invoke a number of issues that do not strictly have to do with the law, but they can involve ethical considerations. Businesses may need policies and procedures to address the ethics and procedures for using AI.
For example, here are some of the challenges that you may encounter in integrating an AI-based solution:
While an attorney cannot make decisions for you on how you will use AI, they can help you consider some of the ethical questions involved. Your attorney could draft the procedures for how your business uses AI to help keep you on the right side of any ethical issues.
Employers face a number of risks when they are using AI. They can be sued if they violate the law or their employees’ rights. For example, many companies are turning to AI in their recruiting and hiring practices. However, AI uses information that is already in the public realm. Oftentimes, an employer does not know how that information was derived, or what factors went into making the existing decisions. Thus, an employer could be susceptible to lawsuits for discrimination if the AI reinforces an existing bias. The United States Equal Opportunity Commission has taken a particular recent interest in the outcomes of AI-based hiring and promotion decisions.
Various states are handling AI issues differently. For example, California has amended its California Consumer Privacy Act to account for the use of AI in employment-related matters. New York City will now regulate AI hiring tools, requiring a bias audit before they can be used. New York will be the first jurisdiction to enforce anti-bias rules in the use of AI, but it will be far from the last.
AI is still in its early stages. The federal and state governments are still considering the most effective regulatory approach to the technology. Businesses can expect that much of the regulation will be on the state level, with additional rules from the federal government when the technology is used in an area that the federal government regulates. For now, the Federal Trade Commission has been aggressive about asserting its own authority to regulate AI.
It is virtually impossible for there to be such a disruptive technology that will not be closely regulated. However, the future of AI regulation is still evolving. It is virtually impossible that a technology will be able to impact so many areas of our lives and not be more closely regulated. The contours of the future regulation are still to be determined.
Businesses will need to remain informed about trends and regulatory efforts. If they conduct business across state lines, there will likely be numerous different laws that they need to follow.
For example, there are proposed laws in the United States that would require impact analysis when AI is used in certain industries, such as housing and credit. The Federal Trade Commission would be empowered to enforce these rules. Various states are beginning to pass laws. In addition, the European Union has proposed a regulation to govern AI that would apply to anyone “placing on the market or putting into service AI systems in the Union.”
With a broad mosaic of potential laws coming in the future, you would need to integrate your own compliance efforts to follow all regulations. You could be subject to regulations in multiple jurisdictions, and you would need to follow them all. Your business may even need to follow regulations from other countries if you do business there.
The most important thing is staying informed because the landscape will shift rapidly in the future. Businesses may need to comment on proposed regulations and even consider filing a lawsuit if the regulation is illegal or violates their rights.
Then, companies must be prepared to comply with regulations by issuing detailed policies and procedures to be followed. The first thing that regulators will ask for when they are considering enforcement action is a copy of the policies and procedures to both verify that they exist and that they were followed.
Just as AI can help your business, it can also present challenges and pitfalls. One of the more injurious uses of AI is to present deepfake videos. Your brand could be irreparably damaged when a competitor, or someone with bad intentions, produces deepfake videos that harm your reputation. However, finding the right person to take action against and putting a stop to this behavior can be challenging.
Another potential problem is when a contract or a law would force you to reveal the algorithm or inputs into what is generated by AI. Then, your trade secrets and methods may be at risk. Once information is in the public realm, others may be able to use it with impunity.
Another major potential problem relating to AI is what happens when something goes wrong. Professionals in certain fields have responsibilities and standards that they must follow. For example, if a doctor uses AI to help their practice of medicine, and they make a mistake, they could potentially lose their license. The same thing applies to a lawsuit – someone will need to be responsible if AI makes a mistake. The question in each case is who would be liable. Some of this could be addressed by contract ahead of time. Once something happens, the court would determine who is liable and must pay damages.
One of the major problems that businesses may face is enforcement actions and litigation. The federal government could act against companies using AI when it results in discrimination. In addition, AI could also lead to enforcement actions for violations of privacy.
Many of the early AI-related lawsuits have related to:
The use of AI could vary based on your industry. Companies can expect that there may be laws and regulations in the future that govern when industry-based solutions could be fully autonomous.
There are currently specific regulations in the following industries relating to AI:
One of the key early concepts in AI regulation is the level of explainability. The important question is whether a human being can explain the decision that the machine made. For example, the Consumer Financial Protection Bureau has a new regulation that prohibits consumer credit companies from taking actions against consumers that are based on an algorithm, when a human being cannot explain the reasons for them.
When you hire a law firm to work with you on AI-related issues, you need attorneys with skills across multiple practice areas and disciplines in the law. AI is such a new technology that there are new issues arising all the time, and you need to stay one step ahead of the game.
When you are choosing a law firm partner, you should consider one where you can get all the services that you need under one roof, as opposed to needing to cobble together multiple lawyers to handle your issues.
Traverse Legal can handle all of your AI-related needs with our expertise in both high-tech and business law. Our lawyers understand the underlying technology and its place in the regulatory environment. We can add value to your business because we are technology lawyers at heart. We will partner with you to deliver the most effective solutions to your AI legal issues. We can help you anticipate what could happen in the future and prepare you to deal with these challenges.
The ideal AI attorney should be able to assist you in the following areas:
For now, the most common types of lawsuits relate to trade secret and patent infringement, although the scope and breadth of litigation may change as AI gains wider usage.
The attorneys at Traverse Legal are well-versed in the legal issues that pertain to AI. We will get to know your business and help you prepare in advance for what you may face, so you can be ready for the future. The first step is to contact us to speak to an attorney, so we can get to know each other. You can message us online or call us today at 866-728-2197 to learn more.