Florida’s New Advisory Ethics Opinion on Generative AI Hits the Mark; JDSupra, January 29, 2024

 Ralph Artigliere , JDSupra; Florida’s New Advisory Ethics Opinion on Generative AI Hits the Mark

"As a former Florida trial lawyer and judge who appreciates emerging technology, I admit that I had more than a little concern when The Florida Bar announced it was working on a new ethics opinion on generative AI. Generative AI promises to provide monumental advantages to lawyers in their workflow, quality of work product, productivity, and time management and more. For clients, use of generative AI by their lawyers can mean better legal services delivered faster and with greater economy. In the area of eDiscovery, generative AI promises to surpass technology assisted review in helping manage the increasingly massive amounts of data.

Generative AI is new to the greater world, and certainly to busy lawyers who are not reading every blogpost on AI. The internet and journals are afire over concerns of hallucinations, confidentiality, bias, and the like. I felt a new ethics opinion might throw a wet blanket on generative AI and discourage Florida lawyers from investigating the new technology.

Thankfully, my concerns did not become reality. The Florida Bar took a thorough look at the technology and the existing ethical guidance and law and applied existing guidelines and rules in a thorough and balanced fashion. This article briefly summarizes Opinion 24-1 and highlights some of its important features.

The Opinion

On January 19, 2024, The Florida Bar released Ethics Opinion 24-1(“Opinion 24-1”)regarding the use of generative artificial intelligence (“AI”) in the practice of law. The Florida Bar and the State Bar of California are leaders in issuing ethical guidance on this issue. Opinion 24-1 draws from a solid background of ethics opinions and guidance in Florida and around the country and provides positive as well as cautionary statements regarding the emerging technologies. Overall, the guidance is well-placed and helpful for lawyers at a time when so many are weighing the use of generative AI technology in their law practices."

Creatives Battling AI Companies Over Copyright Turn to Congress; Bloomberg Law, January 29, 2024

Isaiah Poritz, Legal Reporter; Diego Areas Munhoz 

Reporter, Bloomberg Law ; Creatives Battling AI Companies Over Copyright Turn to Congress

"In 1908, the Supreme Court ruled that “piano rolls,” a new and increasingly popular technology that automatically played songs without a human musician, didn’t violate copyright law—a blow to the music industry. Songwriters and composers felt their livelihoods threatened but had no grounds to demand royalties from piano-roll makers that copied their sheet music.

That was until Congress stepped in the following year, amending the law to address piano rolls and ensure musicians were paid royalties.

More than a century later, musicians—along with other creatives—are yet again fearful an emerging technology could disrupt their industries: artificial intelligence."

AI-created images lose U.S. copyrights in test for new technology; Reuters, February 22, 2023

Blake Brittain, Reuters; AI-created images lose U.S. copyrights in test for new technology

"Images in a graphic novel that were created using the artificial-intelligence system Midjourney should not have been granted copyright protection, the U.S. Copyright Office said in a letter seen by Reuters.

"Zarya of the Dawn" author Kris Kashtanova is entitled to a copyright for the parts of the book Kashtanova wrote and arranged, but not for the images produced by Midjourney, the office said in its letter, dated Tuesday."

Your selfies are helping AI learn. You did not consent to this.; The Washington Post, December 9, 2022

Shira Ovide, The Washington Post; Your selfies are helping AI learn. You did not consent to this.

"My colleague Tatum Hunter spent time evaluating Lensa, an app that transforms a handful of selfies you provide into artistic portraits. And people have been using the new chatbot ChatGPT to generate silly poems or professional emails that seem like they were written by a human. These AI technologies could be profoundly helpful but they also come with a bunch of thorny ethical issues.

Tatum reported that Lensa’s portrait wizardly comes from the styles of artists whose work was included in a giant database for coaching image-generating computers. The artists didn’t give their permission to do this, and they aren’t being paid. In other words, your fun portraits are built on work ripped off from artists. ChatGPT learned to mimic humans by analyzing your recipes, social media posts, product reviews and other text from everyone on the internet...

Hany Farid, a computer science professor at the University of California at Berkeley, told me that individuals, government officials, many technology executives, journalists and educators like him are far more attuned than they were a few years ago to the potential positive and negative consequences of emerging technologies like AI. The hard part, he said, is knowing what to do to effectively limit the harms and maximize the benefits." 

Trademark and copyright considerations for NFTs; Reuters, May 2, 2022

Sharon Urias, Reuters ; Trademark and copyright considerations for NFTs

"NFTs are mostly used to verify ownership of digital goods. An easy way to understand NFTs is to think of them as unalterable certificates of authenticity for digital goods. For example, if someone purchases a piece of digital art, the NFT acts to validate and verify ownership and authenticity of the artwork. In the "real world," the closest analogy is an autographed original painting that is authenticated by the artist's signature or a certificate of authenticity issued by a reputable source...

One common question asked by clients is whether, when they purchase NFTs, they also obtain the copyright associated with it. The answer is: Not necessarily. It is important to understand what is included in the smart contract that confers the purchaser's rights to the digital asset. Similar to the purchase of a physical painting in our analogy above, although the purchaser has acquired the right to display the work, and to resell it, ownership of the copyright is not automatically conveyed.

The artist owns the copyright unless the author assigns it to the purchaser...

NFTs present interesting and novel questions for trademarks as well...

One of the questions to be resolved is whether traditional trademark legal doctrines, such as the first-sale doctrine, protects a seller, such as StockX, or whether the NFTs are new, distinct products that seek to capitalize on the trademark owners' marks...

It is always challenging for the law to keep pace with the expansion and development of new technologies and innovations. It is no different with NFTs. With the increased growth of NFTs, the need for protection also grows. Although NFTs present many opportunities for businesses, it is essential that NFT sellers clearly delineate in the smart contract what is and is not permitted with respect to intellectual property rights. In that way, both NFT sellers and buyers will be able to protect themselves and best monetize these assets."

Stephen G. Breyer may shape tech’s copyright battles for years to come; The Washington Post, January 27, 2022

Cristiano Lima with research by Aaron Schaffer, The Washington Post; Stephen G. Breyer may shape tech’s copyright battles for years to come

"Stephen G. Breyer may shape tech’s copyright battles for years to come

With the looming retirement of Supreme Court Justice Stephen G. Breyer, tech policy wonks say the high court is losing one of the nation’s preeminent thought leaders on intellectual property and copyright.

But while Breyer may be on his way out of federal court, his influence over those standards, and how they map onto emerging technologies, is poised to live on long after.

For decades, Breyer has carved out a unique role on the bench as a copyright specialist, said Meredith Rose, senior policy counsel at consumer group Public Knowledge. And his advocacy for a more limited view of intellectual property rights than some of his colleagues, such as the late Justice Ruth Bader Ginsburg, made him a “rarity” in the space, Rose said. 

“He’s definitely got the biggest depth of experience in copyright issues on the bench currently,” she said. “It was really him and Justice Ginsburg were the two titans of copyright.”

Corynne McSherry, legal director at the Electronic Frontier Foundation, called Breyer “a very strong voice for a balanced intellectual property system” that ensured that copyright and patents are “encouraging innovation, encouraging new creativity … as opposed to thwarting it.”

These traits, they said, were exemplified in one of Breyer’s most recent high-profile copyright cases: the contentious, decade-long Google v. Oracle bout."

Open Educational Resources Are ‘Moving Up the Adoption Ladder’ Around the World; EdSurge, March 3, 2020

Rebecca Koenig, EdSurge; Open Educational Resources Are ‘Moving Up the Adoption Ladder’ Around the World

"Open educational resources have gone global and may help make learning more accessible, equitable and inclusive around the world.

So says the new Educause Horizon report, which identifies technologies and trends that are changing higher education.

This year’s forecast was created by nearly five dozen higher education experts, a third of them from institutions outside of the U.S. OER was one of six “emerging technologies and practices” the panelists highlighted as most likely to significantly influence postsecondary teaching and learning in the future...

At the October 2019 UNESCO General Conference meeting, multiple governments agreed to adopt a set of legal and technical standards for OER materials so that they can be better shared across borders."