How Will Artificial Intelligence Impact IP Litigation?

If you read my TechCrunch article from last year, you know where this is headed.  Artificial intelligence is finally hitting the mainstream, with autonomous vehicles soon on the road here in California.  While it has greater implications throughout the world, my interest in it is as to its implications for technology disputes.  Through my research in preparation for my March 14 webinar, I found that not a single case has considered what will happen in an intellectual property litigation is a product or service powered by an AI is alleged to infringe.  This has huge implications for the IP world, which, like the tort world, is greatly concerned with whether the alleged infringed intended for the harm to happen.

If an AI creates such harm, who is liable?  Can an alleged patent infringer be liable for willful infringement?  Can an alleged copyright infringer be liable for willful copyright infringement?  What is a songwriting AI came up with similar music as to a popular song, is the software developer liable for copyright infringement?  So far, the answer is unknown.

It sounds crazy, but the Monkey Selfie case actually will have a big impact on how courts will look at this issue in the near-future.  In that case, a wildlife photographer had traveled to Indonesia to take pictures of an endangered species of macaques, and one of them took a “selfie”, a picture of itself.  There have been a related series of disputes about this issue, and the most recent was a case brought by PETA claiming that the monkey had a right to a copyright of the photograph.  Multiple judges expressed skepticism of a non-human holding IP rights.

While this issue is still up for debate, it is likely that this will cut both ways for an AI.  While it is unlikely that an AI will be granted IP rights, it is also unlikely that an AI will be liable for infringement, thus insulating its owners/users from certain types of IP liability.  As AI becomes more popular in commercial settings, this will likely become a real issue when alleged infringers assert that the “[AI] did it”, not them.  This will be an issue to watch in IP circles in the upcoming years.

Jeremy T. Elman

Jeremy T. Elman

Jeremy is a trial lawyer who focuses on high-stakes patent litigation in courts across the country, as well as trademark, copyright and trade secret cases.

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