Hawley Troxell recently sponsored an AI ChatGPT event to review legal issues and concerns with these new technologies. As such, I developed a list of often-overlooked issues in the realm of intellectual property and contract law that dramatically impact a company’s ability to legally monetize content produced by a generative AI like ChatGPT.
Here is that list:
- You cannot lawfully own or monetize the output of an AI. The output is not your work of authorship under copyright law.
- You cannot warrant the accuracy (defamation?) or noninfringement of the output of an AI.
- The output may infringe someone else’s copyrights or trademarks or patents and you will get sued and have no indemnification.
- Copyright owners and patent holders have no recourse against infringing, illegal AI output since the law has not yet caught up to create a remedy. So if I ask ChatGPT to write me some Star Wars fan fiction and I then place that content on the internet or sell it on Amazon, Disney has no remedy—except to sue me somehow, because they are Disney and have a lot of money.
- If I sell my company or seek an investment round, I cannot assert or warrant during due diligence or in the final contracts that I own any IP created by an AI.
- I will be asking this in my due diligence.
- You similarly cannot make any warranties of title if you license the output to a third-party.
- The notion of “licensing” AI output is a fiction because a license inherently contemplates I can sue an infringer for using my stuff without that license, and here no such right exists. If you sell or license content authored by an AI it is a fiction that you are “licensing” it.
- I cannot patent inventions thought of by an AI unless my prompt somehow rises to the strict level of inventorship.
- I cannot register copyrights in content authored by an AI because I am not the author, and the AI cannot register its own copyrights because it lacks personhood.
- Are your contractors using ChatGPT?
- There’s probably no insurance coverage for content written by an AI. There’s either an express exclusion, or the policy does not cover ‘non-employees.’
- FTC disclaimers coming? False advertising?
- Insurance exclusions coming?
- Prompt violates an NDA?
- Data breach and privacy?
- Prompt violates one-year on-sale bar? Foreign implications?
- Internal policies drafted and promulgated?
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