The U.S. Food and Drug Administration (FDA) has issued a draft guidance intended to promote the development of safe and effective medical devices that use a type of artificial intelligence (AI) known as machine learning (ML). The draft guidance further develops FDA’s least burdensome regulatory approach for AI/ML-enabled device software functions (ML-DSFs), which aims to increase the pace of innovation while maintaining safety and effectiveness.
Artificial Intelligence Updates – 05.31.23
#HelloWorld. In this issue, we head to Capitol Hill and summarize key takeaways from May’s Senate and House Judiciary subcommittee hearings on generative AI. We also visit California, to check in on the Writers Guild strike, and drop in on an online fan fiction community, the Omegaverse, to better understand the vast number of online data sources used in LLM training. Let’s stay smart together.
Read more on The Artificial Intelligence Blog.
EEOC Resource for Using AI in Employment Decisions
On May 18, 2023, the EEOC released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” (hereinafter, the “Resource”) to provide employers guidance on preventing discrimination when utilizing artificial intelligence. For employers who are contemplating whether to use artificial intelligence in employment matters such as selecting new employees, monitoring performance, and determining pay or promotions, this report is a “must-read” in terms of implementing safeguards to comply with civil rights laws.
Artificial Intelligence Updates – 05.16.23
#HelloWorld. In this issue, we survey the tech industry’s private self-regulation—what model developers and online platforms have implemented as restrictions on AI usage. Also, one court in the U.S. hints at how much copying by an AI model is too much and the EU releases its most recent amendments to the AI Act. Let’s stay smart together.
Read more on The Artificial Intelligence Blog.
Artificial Intelligence Updates – 05.02.23
#HelloWorld. We originally thought this edition would focus on OpenAI’s attempts to self-regulate GPT usage, but the European Union had other plans for us. This past Thursday, news broke of an agreement to add generative AI tools to the AI Act, the EU’s centerpiece AI legislation. So today’s issue starts there, before discussing OpenAI’s and others’ recent announcements regarding training data access and usage.
How AI and ChatGPT Affects Class Action Litigation
Vietnam: New Decree on Personal Data Protection
On 17 April 2023, Decree No. 13/2023/ND-CP on personal data protection (PDPD) was officially issued by the Vietnamese Government. The long-awaited and controversial decree is set to be the first ever legal document with comprehensive regulations on both personal data and its protection in Vietnam. With an exception being the grace period of 2 years for SMEs, after 1 July 2023, the PDPD will be applicable to all entities located in Vietnam and/or outside Vietnam but directly con-ducting activities in relation to the processing of personal data in Vietnam.
To read the full text of this blog post by Duane Morris Vietnam partner Dr. Oliver Massmann, please visit the Duane Morris Vietnam Blog.
Artificial Intelligence Updates – 04.18.23
#HelloWorld. In this edition, momentum picks up in Congress, the executive branch, and the states to regulate AI, while more intellectual-property litigation may be on the horizon. Overseas, governments continue to be wary of the new large AI models. It’s getting complicated. Let’s stay smart together.
Read more on The Artificial Intelligence Blog.
Is AI Technology Creative?
On March 16, 2023, the United States Copyright Office (USCO) published Copyright Registration Guidance (Guidance) on generative AI. In the Guidance, the USCO reminded us that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” This statement curiously conjures the notion of a machine creating copyrightable works autonomously.
FTC’s Proposed Click to Cancel Rule for Online Commerce
The Federal Trade Commission’s proposed click to cancel rule requires companies to provide more detailed information and notices about cancelling automatic renewals, subscriptions, and memberships which are prevalent in online commerce. The proposed rule, titled Negative Option Rule, is at: https://www.ftc.gov/system/files/ftc_gov/pdf/p064202_negative_option_nprm.pdf
The goal of the proposed rule is to combat unfair or deceptive practices that include recurring charges for products or services consumers do not want and cannot cancel without undue difficulty. The FTC is currently seeking comments on the proposed rule until April 19, 2023.
The proposed rule would require canceling via a negative-option program to be easy and available through the same means as signing up. For example, if a company offers one-click membership sign-up through its website, then the company must also offer one-click cancellation through the same website.
Other substantive requirements of the proposed rule include annual reminders for customers of programs that do not involve the shipment of physical goods, pre-billing disclosure requirements, express consent for subscription terms separate from the rest of the transaction, and limits on the ability to offer special deals to customers attempting to cancel.
To help comply with this anticipated rule, companies should:
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- Catalog: Catalog their negative-option marketing offerings under the broad definition provided by the FTC under the proposed rule
- Representations: Review the processes associated with these offerings, including representations they make concerning any aspect of a product or service involving negative-option marketing to ensure they are accurate
- Pre-bill disclosures: Review pre-billing disclosures to ensure all material terms of a deal are disclosed to consumers before they enter their billing information and that express consent to the subscription is obtained
- Involve IT: Communicate with their IT departments to develop a simple cancellation procedure which includes annual notifications for consumers.