USA Trends and Developments Contributed by: Paul M “Tad” O’Connor III, Joshua D Fulop, Daniel J Koevary and Matthew B Stein, Kasowitz Benson Torres LLP
Litigation in the USA: An Overview In 2024, as addressed in detail in this article, law firms have continued to address ongoing devel- opments in technology (particularly AI-driven), as well as new developments in the battle over circumscribing non-compete agreements. There were also several important substantive law developments ‒ notably, relating to the use of bankruptcy plans to release non-debtor parties. Developments in new world of AI If 2023 was a year of optimism and enthusiasm for emerging AI technology, 2024 is the year some of the shine may have worn off. Goldman Sachs issued a research paper questioning whether businesses could ever realise returns sufficient to justify the massive investments of capital and energy required by AI. Prominent publications such as The New York Times and The Atlantic published articles noting AI’s strug- gles to provide accurate information and its pro- pensity to flood the internet with spam. Even so, AI continues to generate significant legal developments as courts and legislatures grapple with the new ways this technology oper- ates and its implications for the law. AI has been heralded as a technological paradigm shift as profound as the internet revolution of the late 20th century. Law develops slowly and, just as it struggled to keep with a new online world then, it may struggle to make sense of a new AI world. Lawyers and their clients would do well to keep abreast of developments in the following areas as they attempt to navigate the legal minefield
ing data (so-called scraping) to learn ‒ a process that involves making a copy of that data. To the extent that scraped material is copyrighted, it has led to lawsuits against AI companies from authors, journalists, music publishers, and image publishers. The plaintiffs in such cases often argue that AI platforms either directly infringe their copyrights by copying the data or that the platforms’ out- put consists of substantially similar works that infringe. Another theory alleges that the plat- forms are themselves unauthorised derivative works, given that they contain the scraped mate- rial and use it while running. Although these suits are largely in their early stages, they have so far had mixed results ‒ for example, in Andersen v Stability AI Ltd, a court permitted claims alleging that an AI platform’s operation uses copyrighted material to go for- wards. However, in a high-profile case by soft- ware developers against GitHub, Microsoft, and OpenAI (Doe v GitHub, Inc), another court dis- missed copyright claims because the plaintiffs failed to sufficiently allege that the AI platform’s output was close enough to protected material. Deepfakes “Deepfakes” are AI-created fake representations of people, often including video and audio. The potential for deepfakes to wreak havoc on indi- viduals’ reputations and businesses ‒ especially influential or famous individuals ‒ is profound. Such people will inevitably seek legal redress and, while states are rushing to pass statutes regulating deepfakes, existing tort law also offers solutions. Some victims of deepfake misrepresentations have brought right of publicity claims, which protect an individual’s right to control or profit
AI is creating. Copyright/IP
Numerous litigations involving AI relating to cop- yright and IP claims were commenced in 2024. Those lawsuits focus on the way AI programs are trained. The systems trawl the internet, captur-
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