Posts Tagged: "technology"

On June 14, a series of 17 music publishers, members of the National Music Publishers’ Association (NMPA), filed a lawsuit in the Middle District of Tennessee against the social media platform, Twitter. The music publishers’ suit alleges claims of direct, vicarious and contributory copyright infringement by Twitter involving about 1,700 copyrighted songs, many of which continue to remain accessible in…

In the first installment of this two-part series, we posed a question: What is at the intersection of name, image, likeness rights (NILs), non-fungible tokens (NFTs), artificial intelligence (AI) creations, big data, blockchain, and the metaverse? The answer is – intellectual property. Our hypothetical described a high school basketball star, Sky-Freeze, who sought to leverage their name, image, and likeness (NIL) on a metaverse platform, illustrating how a digital avatar, corresponding NFTs in the metaverse, AI, and big data intersect. This second installment explores how AI impacts the intersection, giving rise to legal issues concerning intellectual property rights.

There is no question that artificial intelligence (AI) has led to a monumental shift in intellectual property law and strategy. Most companies and attorneys are familiar with the current unsettled legal landscape as it relates to inventorship laws for intellectual property—namely, that inventions and works that are created through AI may or may not be eligible for patent or copyright protection, depending on the circumstances. But quietly in the background, AI has already been changing—and continues to change—how IP portfolios are created and managed. Below are five key ways that AI is changing how companies handle their IP portfolios. 

On May 18, 2023, the U.S. Supreme Court answered an exceedingly narrow question of copyright law with potentially sweeping impact: did the purpose and character of Andy Warhol’s below ‘Orange Prince’ work—as used on a 2016 Condé Nast magazine cover—support fair use of Lynn Goldsmith’s photograph of famed musician Prince Rogers Nelson a/k/a Prince?  In a 7-2 decision, the Court found that it does not, calling into question nearly 30 years of fair use jurisprudence, arguably narrowing the scope of that doctrine, and potentially threatening disciplines that rely on it, e.g., appropriation art. The decision is also sure to impact generative artificial intelligence (“AI”), an emerging technology that is also likely to rely heavily on fair use.

The use of Artificial Intelligence (AI) has taken center stage in popular culture thanks to the significant advances of tools like ChatGPT. Of course, the use of these new, high-powered AI tools presents real issues for businesses of all types and all sizes. Notably, Samsung employees shared confidential information with ChatGPT while using the chatbot at work. Subsequently, Samsung decided to restrict the use of generative AI tools on company-owned devices and on any device with access to internal networks. Concerned about the loss of confidential information, Apple has likewise restricted employees from using ChatGPT and other external AI tools. The actual or potential loss of confidential information is a matter of critical importance to technology companies, but it also must be of the utmost concern for all attorneys who have an ethical obligation to keep client information confidential.

The House of Representatives’ Subcommittee on Courts, Intellectual Property, and the Internet today held a hearing titled “IP and Strategic Competition with China: Part II – Prioritizing U.S. Innovation Over Assisting Foreign Adversaries,” which focused on the World Trade Organization’s (WTO’s) agreement on a waiver of IP rights for COVID-19 vaccine technologies under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) last June. All of the panelists agreed that COVID-19 is no longer a public health emergency and that an extension of the waiver to diagnostics and therapeutics is likely unnecessary.

Some of the earliest chapters in the story of U.S. innovation have been written by Black Americans who not only advanced the state of industry in our country, but also fought to ensure that they were credited for what they achieved. Within the next few years, the city of Newark, NJ, will be the home of a museum properly paying homage to the historic contributions that these inventors have made to medical science, telecommunications, transportation and more.

Artificial Intelligence (AI) has become a crucial tool for organizations in various sectors, particularly in the generation of content and code by generative AI systems such as ChatGPT, GitHub Copilot, AlphaCode, Bard and DALL-E, among other tools. As the promise of incorporating these generative tools in the corporate setting is all but assured in the near term, there are a number of risks that need to be minimized as companies more forward. In particular, as AI applications grow increasingly sophisticated, they raise concerns with several forms of intellectual property (IP), such as patents, copyrights, and trade secrets. This article aims to discuss these issues and provide a sample company policy for using AI-generated content such as software code.

The European Commission (EC) is at it again, threatening to regulate standard essential patent (SEP) licensing relationships, despite a lack of evidence that such regulation is appropriate. The economically harmful nature of this regulatory framework (and its prior draft) has been highlighted by many expert commentators, including contributors to IPWatchdog (see here, here, and here) and Truth on the Market (see here and here). Fortunately, the EC’s proposed regulatory framework is still open for public comments. Mindful of that opportunity, on May 23, Mercatus Center scholars Christine McDaniel, Satya Marar, and I filed a public interest submission with the European Commission, focusing on three sets of problems posed by the framework. I summarize our submission below.

On  April 3, 2023, the UK Intellectual Property Office (UKIPO) issued much needed guidance on how digital goods and services – namely non-fungible tokens (NFTs), virtual goods, and services provided in the metaverse – should be classified for trademark purposes. NFTs The UKIPO defines an NFT as “a unique unit of data (the only one existing of its type) that…

In response to last week’s hearing of the House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet about the impact of artificial intelligence (AI) on copyright law, former Copyright Office General Counsel, Jon Baumgarten, submitted a letter this week to the Subcommittee expressing his concerns with the testimony of one of the witnesses, Sy Damle of Latham & Watkins, who also formerly served as U.S. Copyright Office General Counsel. The letter was published in full on the Copyright Alliance website.

Previously, we wrote about how alleged concerns of “hold-up” and a lack of “transparency”, two non-legal terms without accepted definitions, are being used to advocate for special rules applicable to patents subject to declarations regarding Fair, Reasonable and Non-Discriminatory (FRAND) licensing. These vague concepts are specifically chosen to obfuscate the real issues impacting FRAND licensing and used in an effort to shift traditional burdens of proof, regulate behavior previously found not to violate antitrust / competition law, and rewrite the express language of the commitment made by patent owners to the European Telecommunications Standards Institute (ETSI). The European Commission (EC) is the latest bull to enter the FRAND licensing China shop.

Real estate data firm CoStar and real estate digital marketplace CREXi are currently engaged in a high-profile intellectual property fight. Costar, which runs Apartments.com, alleges that CREXi is violating the Digital Millennium Copyright Act (DMCA) by using its images on Crexi.com without regard to its terms of service. The company has gone so far as to say that “CREXi is attempting to build its own online commercial real estate marketplace and auction platform by free-riding on CoStar’s billions of dollars of investments and the thirty-plus years of hard work by CoStar’s employees.” CrEXi, on the other hand, argues that all the images on the site are uploaded at brokers’ (not CrEXi’s) direction and thus the company can’t be held liable for IP violations. 

The House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet today held the first of several planned hearings about the impact of artificial intelligence (AI) on intellectual property, focusing in this initial hearing on copyright law. The witnesses included three artists, a professor, and an attorney with varying perspectives on the matter, although the artists all expressed similar concerns about the potentially dire effects of generative AI (GAI) applications on their respective industries and careers.

Bacon is delightful. And the similarly savory subject of who must be named inventor on a bacon patent was the issue in the recent case of HIP, Inc. v. Hormel Foods Corp., No. 2022-1696 (Fed. Cir. May 2, 2023). HIP claimed that one of its employees materially contributed to the invention of Hormel’s patent on methods for precooking bacon. The question of what makes one an “inventor” was central to whether HIP’s employee should be added to the patent. More broadly, questions about inventorship and authorship have become central to recent commentary and speculation about the impact of artificial intelligence (AI) on intellectual property law. While AI did not factor into HIP v. Hormel, the decision provides a useful reminder about the role of the common law in developing answers to these momentous questions.