Litigation Implications of Using AI Tools in Your Business

Artificial intelligence use cases are expanding at a rapid rate, and the pressure is mounting for businesses to leverage that technology or risk being left behind by their competitors. In addition to open-source applications, businesses are using enterprise-specific tools that enable employees to use generative AI technology at work. This includes licensed versions of the open-source models or business-specific tools developed alongside the applications the business is already using.

Read the article by Sarah O’Laughlin Kulik on the Duane Morris website.

Artificial . . . evidence?

Earlier this spring, A Washington State Court Judge issued what is widely believed to be the first evidentiary decision regarding Artificial Intelligence. In ­­Washington v. Puloka, following a Frye hearing, the Judge excluded AI-enhanced video from being considered as evidence. The video originated from Snapchat, and was enhanced using Topaz Labs AI Video, which is a commercially available software program widely used in the cinematography community. The Judge was not persuaded by this widespread commercial adoption, and held that the relevant community for purposes of Frye was the forensic video analysis community – which had not accepted the use Topaz AI.

The opinion shows careful consideration of an issue of first impression. Notably, it was important to the Judge’s opinion that there was another version of the video (the original) that was available and usable – even if it was low resolution, with motion blur. Further, the expert who edited the video did not know the details of how the Topaz Labs AI program worked – that is, he was not sure whether it was generative AI, could not testify to the reliability of the program, and did not know what datasets it was trained on. A different result may prevail where there is no other alternative, and in a situation where there is more testimony regarding the operation of the AI system at issue.

These issues will continue to pop up in courts across the country, and may need to be dealt with in a systematic way to ensure greater consistency. For example, the Advisory Committee on Evidence Rules has been considering proposed amendments to Rules 901 and 702 that would directly address AI-generated evidence.

The AI Update | May 23, 2024

#HelloWorld. Summer days are almost here. In this issue, we dive into the new Colorado AI Act, explore the impact of AI technologies on search providers’ liability shields, and track a U.S. district court’s strict scrutiny of anti-web-scraping terms of use. We finish by recapping a spirited test match on AI policy across the pond. Let’s stay smart together. (Subscribe to the mailing list to receive future issues.)

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When Does Use of AI Set Off an Alarm in the Invention Process?

As generative AI is increasingly used to process information and generate new content, one possible application is to create an alternative embodiment in a patent application.  This could happen when an inventor creates an original embodiment, and then instructs an AI system to create a variant of the original embodiment to achieve broad coverage.  Conceivably, the AI system is configured to create an alternative embodiment based on existing data used to train the AI system or additional information that can introduce changes to the original embodiment, such as prior art in the field.  Would such use of AI be an innocent act or should it trigger an alarm like certain other uses of AI?

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Exploring Legal Risks: AI’s Role in Employment Discrimination Cases

Duane Morris Takeaway: Artificial intelligence took the employment world by storm in 2023, quickly becoming one of the most talked about and debated subjects among corporate counsel across the country. Companies will continue to use AI as a resource to enhance decision-making processes for the foreseeable future as these technologies evolve and take shape in a myriad of employment functions. As these processes are fine-tuned, those who seek to harness the power of AI must be aware of the risks associated with its use. This featured article analyzes two novel AI lawsuits and highlights recent governmental guidance related to AI use. As the impact of AI is still developing, companies should recognize the types of claims apt to be brought for use of AI screening tools in the employment context and the implications of possible discriminatory conduct stemming from these tools.

In the Spring 2024 issue of the Journal of Emerging Issues in Litigation, Duane Morris partners Jerry Maatman and Alex Karasik and associate George Schaller analyze key developments in litigation and enforcement shaping the impact of artificial intelligence in the workplace and its subsequent legal risks. Read the full featured article here.

The AI Update | April 23, 2024

#HelloWorld. In this issue, we zoom in on the world of AI model training, looking at both dataset transparency and valuation news. Then we zoom out, highlighting Stanford’s helpful summary of 2023 AI regulations and hot-off-the-press ethical guidance on AI use for lawyers from the New York State Bar. It may be a grab bag, but it’s one worth grabbing. Let’s stay smart together. (Subscribe to the mailing list to receive future issues.)

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Webinar: Explaining the New EU AI Act

Duane Morris will present Get Smart with AI: Practical Impacts of the New EU AI Act, a webinar on risk mitigation strategies for AI use in business, presented by the Technology, Media and Telecom Industry Group’s Artificial Intelligence Team, on Thursday, May 16, 2024, from 11:00 a.m. to 12:00 p.m. Eastern time and 4:00 p.m. to 5:00 p.m. London time. REGISTER FOR THE WEBINAR.

Join John M. Benjamin and Sandra A. Jeskie for a detailed explanation of the EU AI Act, the implementation and compliance timeline and strategies to prepare your business for the increased scrutiny and regulation of AI on the global stage. We will also consider its possible impact on the U.S. regulatory landscape.

Webinar: Tech Sector Regulations, Developments and Trends in the U.S., U.K. and EU

Duane Morris’ Technology, Media and Telecom Industry Group will present a webinar, Tech Sector Sanctions, Export Controls and Foreign Investment Rules in the U.S., the U.K. and the EU, on Wednesday, April 24, 2024, at 12:00 p.m. Eastern time | 5:00 p.m. London time.

The speakers will discuss recent U.S. executive orders and national security directives on inbound and outbound investment, artificial intelligence and sensitive personal data, as well as other developments and trends. REGISTER FOR THE WEBINAR.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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