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James Gatto

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Jim Gatto is a partner in the Intellectual Property Practice Group in the firm’s Washington, D.C. office. He is Co-Leader of the Artificial Intelligence Team, the Blockchain & Fintech Team, and Leader of the Open Source Team.

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A UK court has ruled that Getty Image’s lawsuit against Stability AI for copyright infringement over generative AI technology can proceed. Stability had sought to have the case dismissed, alleging in part, that the AI models were trained in the US. However, the court relied on seemingly contradictory public statements by Stability’s CEO, including that Stability helped “fast track” UK residency applications of Russian and Ukrainian developers working on Stable Diffusion. This suggests that at least some development occurred in the UK. A similar case involving the parties is pending in the US. One significance of where the case is heard is that in the US, fair use can be a defense to copyright infringement. But not in the UK. This is just one example of where disparate country laws relating to AI may cause AI developers to forum shop to develop AI where the laws are most favorable. For example, Japan has announced that it will not enforce copyrights on data used in AI training. If such activity is found to be infringing in the UK, US or elsewhere, it is conceivable that some companies will move their AI training activities to Japan.Continue Reading Getty Image’s AI Model Training Lawsuit in UK Against Stability to Proceed 

The White House’s Executive Order On The Safe Secure And Trustworthy Development And Use Of Artificial-Intelligence (“EO”) addresses many equity and civil rights issues with AI and mandates certain actions to ensure that AI advances equity and civil rights. The Fact Sheet accompanying the EO summarizes some issues and actions directing various agencies to:Continue Reading Equity and Civil Rights Issues in the White House Executive Order on AI

On October 30, 2023, the White House issued an Executive Order focusing on safe, secure and trustworthy AI and laying out a national policy on AI. In stark contrast to the EU, which through the soon to be enacted AI Act is focused primarily on regulating uses of AI that are unacceptable or high risk, the Executive Order focuses on responsible use of AI as well as developers, the data they use and the tools they create. The goal is to ensure that AI systems used by government and the private sector are safe, secure, and trustworthy. The Executive Order seeks to enhance federal government use and deployment of AI, including to improve cybersecurity and U.S. defenses, and to promote innovation and competition to allow the U.S. to maintain its position as a global leader on AI issues. It also emphasizes the importance of protections for various groups including consumers, patients, students, workers and kids.Continue Reading Flash Briefing on White House Executive Order on AI Regulation and Policy

The White House Executive Order on AI (“EO”) is comprehensive and covers a wide range of topics. We provided a summary here. It addresses many of the risks and problems that can arise with AI. One of the topics which raises many legal issues, particularly with generative AI (“genAI”), is intellectual property. Some of the IP issues include: i) whether training AI models on copyrighted content constitutes infringement; ii) whether the output of genAI that is based on copyright-protected training material constitutes infringement; iii) what level of human authorship/inventorship is required for copyright/patent protection of genAI-assisted works; iv) whether genAI tools that create art “in the style of” particular artists constitutes copyright infringement and/or violate the right of publicity; v) whether genAI tools that are trained on copyright-protected materials must maintain copyright management information; and vi) whether genAI tools, such as AI code generators, that are trained on open source software, must comply with the terms of the open source licenses.Continue Reading White House Executive Order on AI Punts on IP Issues

The US just catapulted into being the world leader on regulating AI. Bypassing Congress, the White house issued an Executive Order focusing on safe, secure and trustworthy AI and laying out a national policy on AI. In stark contrast to the EU, which through the soon to be enacted AI Act is focused primarily on regulating uses of AI that are unacceptable or high risk, the Executive Order focuses primarily on the developers, the data they use and the tools they create. The goal is to ensure that AI systems are safe, secure, and trustworthy before companies make them public. It also focuses on protection of various groups including consumers, patients, students, workers and kids. Continue Reading White House Executive Order Ramps Up US Regulation of and Policy Toward AI

The growth of artificial intelligence (“AI”) and generative AI is moving copyright law into unprecedented territory. While US copyright law continues to develop around AI, one boundary has been set: the bedrock requirement of copyright is human authorship. Given this, it is clear in the US, AI alone cannot be an author. This bedrock principle was reinforced in two recent copyright decisions. But unanswered questions abound. For example, how will the Copyright Office address collaborative or joint works between a human and AI? And will this bedrock principle be limited to generative AI, or may it lead to revisiting copyright protection for other technologies where creative decisions are left to machines?Continue Reading Generative AI and Copyright – Some Recent Denials and Unanswered Questions

The rapid growth of generative AI (GAI) has taken the world by storm. The uses of GAI are many as are the legal issues. If your employees are using GAI, they may be subjecting your company to many unwanted and potentially unnecessary legal issues. Some companies are just saying no to employee use of AI. That is reminiscent of how some companies “managed” open source software use by employees years ago. Banning use of valuable technology is a “safer” approach, but prevents a company from obtaining the many benefits of that technology. For many of the GAI-related legal issues, there are ways to manage the legal risks by developing a thoughtful policy on employee use of GAI.Continue Reading Microsoft to Indemnity Users of Copilot AI Software – Leveraging Indemnity to Help Manage Generative AI Legal Risk

The U.S. Congress has introduced a bipartisan bill that would create a National AI Commission (“Commission”). A focus of the Commission will be to ensure that through regulation, the United States is mitigating the risks and possible harms of AI, protecting its leadership in AI innovation and ensuring that the United States takes a leading role in establishing necessary, long-term guardrails. Additionally, it will review the Federal Government’s current approach to artificial intelligence oversight and regulation, how that is distributed across agencies and the capacity and alignment of agencies to address such oversight and regulation.Continue Reading Congress Proposes National Commission to Create AI Guardrails

Many companies are sitting on a trove of customer data and are realizing that this data can be valuable to train AI models. However, what some companies have not thought through, is whether they can actually use that data for this purpose. Sometimes this data is collected over many years, often long before a company thought to use it for training AI. The potential problem is that the privacy policies in effect when the data was collected may not have considered this use. The use of customer data in a manner that exceeds or otherwise is not permitted by the privacy policy in effect at the time the data was collected could be problematic. This has led to class action lawsuits and/or enforcement by the FTC. In some cases, the FTC has imposed a penalty known as “algorithmic disgorgement” to companies that use data to train AI models without proper authorization. This penalty is severe as it requires deletion of the data, the models, and the algorithms built with it. This can be an incredibly costly result.Continue Reading Training AI Models – Just Because It’s Your Data Doesn’t Mean You Can Use It

Generative AI (GAI) applications have raised numerous copyright issues. These issues include whether the training of GAI models constitute infringement or is permitted under fair use, who is liable if the output infringes (the tool provider or user) and whether the output is copyrightable. These are not the only legal issues that can arise. Another GAI issue that has arisen with various applications involves the right of publicity. A recently filed class action provides one example.Continue Reading Celebrity “Faces Off” Against Deep Fake AI App Over Right of Publicity