Firm News

On June 15, 2023, Partner Michael Kasdan was featured in Variety’s article, “Generative AI Copyright Cases Under Cloud of Uncertainty.”

The article explores a number of questions surrounding generative AI, including whether training AI using copyrighted material infringes under U.S. copyright law, questions of “fair use” as a defense to infringement claims, the ability to protect an artist’s “style,” as well as potential regulation in the space. Kasdan noted that how courts proceed with the first wave of lawsuits already facing AI companies could give us our first signal about whether and how copyright infringement might be proven.

One aspect of the complexity with generative AI is not knowing the full background into the exact composition of AI training data for many models. Kasdan noted that “[It may be] very hard to have claims without transparency. If you’re going to go under our existing copyright laws and establish copying and establish substantial similarity, you need to have some granularity as to what’s happening and what work is at issue.” 

As to considering how to regulate in the AI space, Kasdan noted that “some level of verifiable disclosure requirement and/or a process where AI companies swear or affirm the data [they use to train] is public domain or licensed or bear the risk of liability in the event it’s not – I can see that all being on the table.” He also noted that new clearer rules around web-scraping could make the licensing of copyrighted data sets much more likely.

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