By Eric D. Morton
We hope that you had a prosperous and healthy 2023. In December, we generally look forward to what is on the legal horizon for the New Year. 2024 promises to be a brave new world. Many of the biggest changes will be around artificial intelligence (AI). Those changes are also unpredictable. The watchwords around AI now are “more shall be revealed”. Below are some areas we thought might interest our readers.
Artificial Intelligence
This past year has seen explosive advances in AI technology and a corresponding explosion in legal problems and issues. Many lawsuits were filed for copyright infringement from owners of works that are used to train large language models (LLMs). Lawmakers across the world are struggling to catch up with AI advances. The European Union drafted a lengthy law in 2021 regulating AI. With advances in AI, the EU’s law became obsolete in 2023 and the Europeans are struggled to draft a new one but recently passed one. We’ll see how the law holds up with the field changing so rapidly.
In our last newsletter, we warned against blindly using AI. Businesses can be held responsible and liable for the sometimes unintended consequences of using AI.
AI and protection under copyright law. One thing that business owners need to consider is the use of AI for a works that might be otherwise protectable by copyright law. The U.S. Copyright Office ruled earlier this year that any work (picture, writing, etc.) that is created with AI cannot receive copyright protection. An AI generated work is not the creation of a human and can’t be protected under the Copyright Act. If a business produces a large amount of content, such as written materials, artwork on a website, etc., and its content creators are using AI, then those works may not be protectable under Copyright law. Business owners need to be careful how their developers, writers and designers are creating.
Privacy
Privacy will be greatly impacted by AI. California is now responding to the use and potential use of AI.
The California Privacy Protection Agency (CPPA) is a state agency that creates regulations to implement the California Privacy Rights Act (CPRA). The CPPA recently announced that it was proposing guidelines for automated decision-making technology (ADMT). One goal of the guidelines is to define ADMT which is “any system, software, or process—including one derived from machine-learning, statistics, or other data-processing or artificial intelligence—that processes personal information and uses computation as whole or part of a system to make or execute a decision or facilitate human decision making. Automated decision-making technology includes profiling.” The guidelines propose that regulations be triggered in situations of decision making that produce “legal or similarly significant effects,” which includes decisions resulting in access to, or the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment or independent contracting opportunities or compensation, healthcare services, and essential goods or services.
For businesses, the draft guidelines underscore the importance of understanding their ADMT and knowing the risks in using it.
More will be revealed in the area of AI and regulations around its use. 2024 looks to be an interesting year.
Eric D. Morton is the principal attorney at Clear Sky Law Group, P.C. He can be reached at emorton@clearskylaw.com, 760-722-6582, and 510-556-0367.
