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Can AI-Generated Output Be Protected Under Intellectual Property Law?

Can AI-Generated Output Be Protected Under Intellectual Property Law?

By Audrey Zhang Yang

Introduction

AI-generated output represents a groundbreaking integration of technology and creativity that increasingly challenges established norms in the legal world. Inevitably, it raises the question on whether law and policy on intellectual property protection should evolve and adapt to recognize this changing innovation trend. The Progress Clause of the Constitution gives Congress the power to “promote the Progress of Science…by securing for limited Times to Authors…the exclusive Right to their…Writing.”[i] Pursuant to this authorization, the Copyright Act extends copyright protection for “original works of authorship fixed in any tangible medium of expression.”[ii] The Copyright Act neither defined “authorship” not “works of authorship.”[iii] Traditionally, courts assigns authorship to individuals who create original works. However, determining authorship is more challenging in the case of artificial intelligence (AI). Some believe that since AI systems are tools programmed by humans, the programmers are entitled to authorship rights.[iv] Also, when someone instructs AI to solve a problem, that person might qualify as an investor if she formulates a problem in a manner that requires inventive skill.[v] However, laws on intellectual property, patent, and copyright were not originally passed with AI in mind. Therefore, there is no law specifically addressing AI-generated invention in any jurisdiction.

Whose DNA is It Anyway? Legal Challenges that Arise from the Use of Genetic Genealogy in Criminal Investigations

Whose DNA is It Anyway? Legal Challenges that Arise from the Use of Genetic Genealogy in Criminal Investigations

By Kim Lo

Since 2018, law enforcement’s use of genetic genealogy to identify and apprehend suspects has been growing [2], especially in high profile cases like the Golden State Killer case and the recent University of Idaho student murders. However, it is not without its critics.

Navigating Big Tech in Today’s Age of Antitrust Enforcement

Navigating Big Tech in Today’s Age of Antitrust Enforcement

By: Allen Masi

In the last year, the United States government has brought antitrust cases against multiple large technology companies.[1] Google, Meta, Apple, and Microsoft have all been under the lens of the federal government.[2] Experts have predicted that 2024 could be a very active year for antitrust enforcers.[3] It is clear that the U.S. government has been paying particular attention to these big technology companies recently. What does this mean for these technology companies and how could possible future action have an impact on consumers?

AI Attorneys – Why Bother Going to Law School?

AI Attorneys – Why Bother Going to Law School?

By: L. Michelle Ugalde

 

With the rapid advancement and integration of Artificial Intelligence (“AI”) across all career fields, the fear of virtual replacement is becoming all the more omnipresent. But is this fear justified? For attorneys, the consensus is split. While all recognize that AI is undoubtedly entering the legal field, the divide is between those who are embracing this new incorporation, and those who reject it. It seems that as time progresses, the feelings of the latter are becoming stronger.

Joan Is Awful: A Petition for Federal Personality Rights Legislation

Joan Is Awful: A Petition for Federal Personality Rights Legislation

By Kathryn Threatt

Background:

In June of 2023, Netflix premiered season 6 of the beloved and haunting series, Black Mirror.[1] The star-filled first episode entitled, Joan Is Awful, is the tale of an everyday woman, Joan, whose life will soon be streamed by millions of viewers on the fictionalized version of Netflix, Streamberry. So, you might be wondering how such a thing happens. Well Joan, unbeknownst to her, signs away her personality rights.[2]

Personality rights are loosely defined as “the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity.”[3] When Joan accepted Streamberry’s terms and conditions buried in the pages of legalese was a clause that gave the platform the right to commercially exploit the most intimate and unflattering details of Joan’s life for television.[4] To further complicate things, Streamberry employed a quantum computer that via multiple versions of reality or a multiverse created the show and generated AI versions of the famous actors playing out Joan’s life.[5] A quantum computer is essentially a mega supercomputer that creates the potential for significant data privacy concerns.[6] IBM describes quantum computing as “a specialized technology–including computer hardware and algorithms that take advantage of quantum mechanics–to solve complex problems that classical computers or supercomputers can’t solve, or can’t solve quickly enough…the real world runs on quantum physics[, therefore c]omputers that make calculations by using quantum states of quantum bits should in many situations be our best tools for understanding it.”[7] Why is a quantum computer a potential threat? Well, a quantum computer has the potential to employ Shor’s algorithm, “one of the most important quantum computing algorithms…[which] would allow a large-scale quantum computer to quickly break essentially all of the encryption systems that are currently used to secure internet traffic against interception.”[8]

The Issue: Contracting Away Your Identity

Although in September Edward Parker stated in his Lawfare article that quantum computers do not pose an imminent threat… yet,[9] the implications of the advancements in quantum technologies and recent case law make Joan Is Awful more of a real possibility.[10] In recent years, the United States has experienced a rise in conversations around the personality rights of athletes and celebrities as a result of NFT lawsuits,[11] the 2023 SAG-AFTRA negotiations,[12] and most recently the Hayley Paige vs. JLM appeal.[13] These in varying degrees dealt with whether corporate entities or the individuals themselves had exclusive ownership in their “name, image or likeness”.[14] While celebrities’ personality rights have been the focus of conversation around protections, Joan Is Awful envisions a world where the non-famous could just as easily be harmed by this type of commercial exploitation.[15] With companies like Google[16] and IBM[17] making claims of being on the cusp of employing quantum computing technology that would leave every day humans susceptible to data breaches, and the improvement of deep fake technology, the ownership of one’s identity could easily be snatched away.

A Possible Solution: A Federal Framework

Technologies from streaming services to smart devices and AI are essential assets in the operation of our daily lives. For better or worse, to use these necessities signing the laboriously long terms and conditions is a requirement. Therefore, consideration around whether contracting away one’s personality rights via the terms and conditions of use should be at the forefront of federal regulation conversations.

Federal protection of personality rights needs to be a key issue in the increasing conversations around the need for comprehensive U.S. federal data privacy and AI legislation and regulations.[18] Currently, states control how personality rights are protected just as states control how data privacy laws are handled.[19] While states should maintain some autonomy in how to protect personality rights,[20] federal protection is a must. The solution does not need to be complicated but simply put: no public or private entities should be allowed to obtain the personality rights of an individual via inconspicuous terms and conditions of use.[21] While the methods of consenting to the exploitation of these rights are debatable, this consent must be explicit and clear. One’s personality rights are foundational to one’s identity and personhood, something that a corporation should not be able to exploit without clear and explicit consent.

Before this level of technology infiltrates our lives, legislators and corporations must consider the dire consequences of allowing consumers to contract away their identities with a simple click of the “Accept” button.

 

 

 

 

Image Source: Black Mirror: “Joan Is Awful” Recap and Analysis | TV Obsessive

[1] Joan Is Awful, IMDB: Black Mirror (last visited Mar. 25, 2024), https://www.imdb.com/title/tt20247352/.

[2] JOAN IS AWFUL NETFLIX 27:14

[3] Copyright & Personality Rights, Schwegman lunberg & woessner, P.A., https://www.slwip.com/resources/copyright-personality-rights/ (Apr. 8, 2019).

[4] Joan Is Awful, supra note 2.

[5] Stephan Lee, Let’s Try and Explain the Mind-Melting ‘Black Mirror’ Episode ‘Joan Is Awful’, Tudum by Netflix: Explainer, https://www.netflix.com/tudum/articles/black-mirror-joan-is-awful-ending-explained (June 20, 2023).

[6] What is quantum computing?, IBM (last visited Mar. 25, 2024), https://www.ibm.com/topics/quantum-computing; Interesting Engineering, Was Black Mirror Right About Quantum Computing, LinkedIn: Interesting Engineering, https://www.linkedin.com/posts/interestingengineering_was-black-mirror-right-about-quantum-computers-activity-7086056831420121088-wDaA/ (June 2023).

[7] What is quantum computing?, supra note 6.

[8] Edward Parker, When a Quantum Computer Is Able to Break our Encryption, It Won’t Be a Secret, Lawfare, https://www.lawfaremedia.org/article/when-a-quantum-computer-is-able-to-break-our-encryption-it-won-t-be-a-secret (Sep. 13, 2023, 10:06 AM).

[9] Id.

[10] See e.g.,Interesting Engineering, supra note 6.

[11] Your Face is My Case: Personality Rights, Ogden Glazer + Schaefer, https://ogs.law/intellectual-property/your-face-is-my-case-personality-rights/ (Nov. 9, 2021) (highlighting the cases that led to student athletes protecting control over their personality rights); Faegre Drinker Biddle & Reath LLP, Name, Image and Likeness Scouting Report, Week 2: How Did We Get Here? From the Hope Diamond to NCAA v. Alston, JDSUPRA, k https://www.jdsupra.com/legalnews/name-image-and-likeness-scouting-report-3907106/ (Sep. 20, 2021) (arguing the impact of the NCAA v. Alston case over student athlete’s NIL control). 

[12] Stuart Heritage, Joan Is Awful: Black Mirror episode is every striking actor’s worst nightmare, The Guardian, https://www.theguardian.com/tv-and-radio/2023/jul/13/joan-is-awful-black-mirror-striking-actors-nightmare (July 13, 2023, 9:45) (arguing that the plot of the show was nightmarishly similar to what actors were fighting to protect against during the Strike); Gili Malinsky, Hollywood’s actors are back to work –here’s what they actually got in SAG-AFTRA’s new contract, CNBC: Make it, https://www.cnbc.com/2023/11/17/sag-aftras-new-deal-whats-in-it-and-what-experts-say.html#:~:text=SAG’s%20new%20contract%20covers%20numerous,another%203.5%25%20effective%20July%202025. (Nov. 17, 2024, 4:53 PM).

[13] See, e.g., Blake Brittain, Hayley Paige wedding-dress dispute again sent back to federal court, Reuters (updated Jan. 17, 2024 5:00 PM), https://www.reuters.com/legal/litigation/hayley-paige-wedding-dress-dispute-again-sent-back-federal-court-2024-01-17/; Blake Brittain, Dressmaker can block designer Hayley Paige from using her own name trademark, court says, Reuters (updated Jan. 26, 2022 12:47 PM), https://www.reuters.com/legal/transactional/dressmaker-can-block-designer-hayley-paige-using-her-own-name-trademark-court-2022-01-25/.

[14] Copyright & Personality Rights, supra note 3.

[15] Joan Is Awful, supra note 2.

[16] Parker, supra note 8.

[17] What is quantum computing?, supra note 6.

[18] Bloomberg, Consumer Data Privacy Laws, Bloomberg Law (last visited Mar. 25, 2024), https://pro.bloomberglaw.com/insights/privacy/consumer-data-privacy-laws/#privacy-laws-by-country; see, e.g., Gopal Ratnam, Push for federal data privacy law grows as rights vary by state, Roll call (Jan. 17, 2024, 7:00 AM), https://rollcall.com/2024/01/17/push-for-federal-data-privacy-law-grows-as-rights-vary-by-state/ (highlighting the Congressional push for Data privacy legislation especially in response to the potential privacy concerns in advent of AI systems); see, e.g., Zach Warren, Legalweek 2024: Current US AI regulation means adopting a strategic – and communicative – approach, Thomas reuters: AI & Future Technologies (Feb. 11, 2024), https://www.thomsonreuters.com/en-us/posts/legal/legalweek-2024-ai-regulation/ (emphasizing the key role the FTC will play in AI regulation as a response to President Biden’s 2023 Executive Order on AI and the shifts that might occur in the aftermath of 2024 Elections).

[19] Id.; see, e.g., Judge Ben C. Green Law Library, What are Personality Rights, Case Western Reserve University School of Law: Intellectual Property Law Research Guide (last visited Mar. 25, 2024), https://lawresearchguides.cwru.edu/IP/personality-rights (providing the example of Ohio); J. Faber, Right of Publicity Statutes & Interactive Map, Right of Publicity (last visited Mar. 25, 2024), https://rightofpublicity.com/statutes.

[20] Jeff Williams, What Are Image and Personality Rights?, Law Office of Jeff Williams PLLC: Intellectual Property Firm (last visited Mar. 25, 2024), https://www.txpatentattorney.com/blog/what-are-image-and-personality-rights/#:~:text=In%20fact%2C%20there%20is%20no,protect%20a%20person’s%20image%20rights. (arguing that state protection has its benefits and can be “actually quite effective”).

[21] But see, Cari Rincker, Name, Image, and Likeness: How to Protect Your Right to You, Rincker Law PLLC, https://rinckerlaw.com/name-image-and-likeness-how-to-protect-your-right-to-you/ (Mar. 12, 2023) (Highlighting that licensing arguments are the way that one can contract away their rights but lacking understanding in the terms of the license can cause issues). Again this blog though helpful focuses more on celebrities and athletes or other individuals that might consider having an “attorney…review licensing agreements before you sign them.” Id. The average individual would not have an attorney review every terms and conditions of use agreement the technologies of our lives require which is why a more comprehensive set of legislation is needed.

You Can’t Spell Agriculture Without AI

You Can’t Spell “Agriculture” Without “AI”

By Avery S. Younis

In a world of rapidly advancing technology, it is no surprise that Artificial Intelligence (AI) has made a home for itself in the agriculture industry. While technology may be at the forefront of our minds, food still has a monopoly on our stomachs. The population has doubled since 1974—there are over 8 billion humans to feed on this planet.[1] With growing numbers of people and rising concerns about resources, we are faced with an efficiency dilemma: how do we increase agricultural production without straining our environment?

Russian nuke in space? What does that mean for the Outer Space Treaty?

Russia reportedly wants to put a nuke in space. What does that mean for the Outer Space Treaty?

President Lyndon B. Johnson looks on as the U.S., the U.K., and the U.S.S.R. sign the Outer Space Treaty, Jan. 27, 1967 (CORBIS/Corbis via Getty Images)

By: Joe Noser

On February 14, 2024, House Intelligence Committee Chairman Mike Turner (R-OH) made waves when his committee posted a cryptic statement calling on the Biden Administration to declassify all information regarding a “serious national security threat.”[1] The threat, it turns out, is significant: a reported Russian program to put a nuclear weapon into low Earth orbit to give it a menacing antisatellite capability.[2]

Taking a deeper look into why the European Union made the USB-C charger the standard across the 27-nation bloc

Taking a deeper look into why the European Union made the USB-C charger the standard across the 27-nation bloc

By Allen Masi

In 2022, an overwhelming majority of the European Parliament passed a reform that will make USB-C connectors the standard charger for most electronic devices across the European Union.[1] Apple, the popular iPhone developer, will be greatly impacted by this sweeping change.[2] After the fall of 2024, mobile phones, e-readers, ear buds, tablets, cameras, and other devices like those made by Apple, Samsung and Huawei will have to be compatible with the single USB-C charger.[3] This new change also applies to all laptops sold after spring 2026.[4] So, why did the European Union decide to make this change?

Hypersonic missiles present new challenges in nuclear deterrence, weapons regulation

Hypersonic missiles present new challenges in nuclear deterrence, weapons regulation

By Joe Noser

When President Joe Biden and his Chinese counterpart, Xi Jinping, met last week in San Francisco, the two leaders had lots to discuss: restoration of military communications, fentanyl controls, and climate change, to name a few.[1]

One issue that likely will not be on the table, however, is coming to a mutual understanding about regulating both nations’ hypersonic weapons programs.

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