Ted Mathiowetz, MJLST Staffer
In the space of a year, artificial intelligence (AI) has seemed to have grabbed hold of the contemporary conversation of technology and calls for increased regulation. With ChatGPT’s release in late-November of 2022 as well as the release of various other art generation softwares earlier in the year, the conversation surrounding tech regulation was quickly centered onto AI. In the wake of growing Congressional focus over AI, the White House quickly proposed a blueprint for a preliminary AI Bill of Rights as fears over unregulated advances in technology have grown.[1] The debate has raged on over the potential efficacy of this Bill of Rights and if it could be enacted in time to reign in AI development.[2] But, while Washington weighs whether the current regulatory framework will effectively set some ground rules, the matter of AI has already begun to be litigated.[3]
The growing fear over the power of AI has been mounting in numerous sectors as ChatGPT has proven its capabilities to pass exams such as the Multistate Bar Exam,[4] the US Medical Exam, and more.[5] Fears over AI’s capabilities and potential advancements are not just reaching academia either. The legal industry is already circling the wagons to prevent AI lawyers from representing would-be clients in court.[6] Edelson, a law firm based in Chicago, filed a class action complaint in California state court alleging that DoNotPay, an AI service that markets itself as “the world’s first robot lawyer” unlawfully provides a range of legal services.[7] The complaint alleges that DoNotPay is engaging in unlawful business practice by “holding itself out to be an attorney”[8] and “engaging in the unlawful practice of law by selling legal services… when it was not licensed to practice law.”[9]
Additional litigation has been filed against the makers of AI art generators, alleging copyright violations.[10] The plaintiffs argue that a swath of AI firms have violated the Digital Millennium Copyright Act in constructing their AI models by using software that copied millions of images as a reference for the AI in building out user-requested images without compensation for those whose images were copied.[11] Notably, both of these suits are class-action lawsuits[12] and may serve as a strong blueprint for how weary parties can reign in AI through the court system.
Faridian v. DONOTPAY, Inc. — The Licensing Case
AI is here to stay for the legal industry, for better or worse.[13] However, where some have been sounding the alarm for years that AI will replace lawyers altogether,[14] the truth is likely to be quite different, with AI becoming a tool that helps lawyers become more efficient.[15] There are nonetheless existential threats to the industry as is seen in the Faridian case whereby DoNotPay is allowing people to write wills, contracts, and more without the help of a trained legal professional. This has led to shoddy AI-generated work, which creates concern that AI legal technology will likely lead to more troublesome legal action down-the-line for its users.[16]
It seems as though the AI Lawyer revolution may not be around to stay much longer as, in addition to the Faridian case, which sees DoNotPay being sued for their robot lawyer mainly engaging in transactional work, they have also run into problems trying to litigate. DoNotPay tried to get their AI Attorney into court to dispute traffic tickets and were later “forced” to withdraw the technology’s help in court after “multiple state bar associations [threatened]” to sue and they were cautioned that the move could see potential prison time for the CEO, Joshua Browder.[17]
Given that most states require applicants to the bar to 1) complete a Juris Doctor program from an accredited institution, 2) pass the bar exam, and 3) pass moral character evaluations in order to practice law, it’s rather likely that robot lawyers will not see a courtroom for some time, if ever. Instead, there may be a pro se revolution of sorts wherein litigants aid themselves with the help of AI legal services outside of the courtroom.[18] But, for the most part the legal field will likely incorporate AI into its repository of technology rather than be replaced by it. Nevertheless, the Faridian case, depending on its outcome, will likely provide a clear path forward for occupations with extensive licensing requirements that are endangered by AI advancement to litigate.
Sarah Andersen et al., v. Stability AI Ltd. — The Copyright Case
For occupations which do not have barriers to entry in the same way the legal field does, there is another way forward in the courts to try and stem the tide of AI in the absence of regulation. In the Andersen case, a class of artists have brought suit against various AI Art generation companies for infringing upon their copyrighted artwork by using their work to create the reference framework for their generated images.[19] The function of the generative AI is relatively straightforward. For example, if I were to log-on to an AI art generator and type in “Generate Lionel Messi in the style of Vincent Van Gogh” it would produce an image of Lionel Messi in the style of Van Gogh’s “Self-Portrait with a Bandaged Ear.” There is no copyright on Van Gogh’s artwork, but the AI accesses all kinds of copyrighted artwork in the style of Van Gogh for reference points as well as copyrighted images of Lionel Messi to create the generated image. The AI Image services have thus created a multitude of legal issues that their parent companies face including claims of direct copyright Infringement by storing copies of the works in building out the system, vicarious copyright Infringement when consumers generate artwork in the style of a given artist, and DMCA violations by not properly attributing existing work, among other claims.[20]
This case is being watched and is already being hotly debated as a ruling against AI could lead to claims against other generative AI such as ChatGPT for not properly attributing or paying for material that it’s used in building out its AI.[21] Defendants have claimed that the use of copyrighted material constitutes fair use, but these claims have not yet been fully litigated, so we will have to wait for a decision to come down on that front.[22] It is clear that as fast as generative AI seemed to take hold of the world, litigation has ramped up calling its future into question. Other world governments are also becoming increasingly weary of the technology, with Italy already banning ChatGPT and Germany heavily considering it, citing “data security concerns.”[23] It remains to be seen how the United States will deal with this new technology in terms of regulation or an outright ban, but it’s clear that the current battleground is in the courts.
Notes
[1] See Blueprint for an AI Bill of Rights, The White House (Oct. 5, 2022), https://www.whitehouse.gov/ostp/ai-bill-of-rights/; Pranshu Verma, The AI ‘Gold Rush’ is Here. What will it Bring? Wash. Post (Jan. 20, 2023), https://www.washingtonpost.com/technology/2023/01/07/ai-2023-predictions/.
[2] See Luke Hughest, Is an AI Bill of Rights Enough?, TechRadar (Dec. 10, 2022), https://www.techradar.com/features/is-an-ai-bill-of-rights-enough; see also Ashley Gold, AI Rockets ahead in Vacuum of U.S. Regulation, Axios (Jan. 30, 2023), https://www.axios.com/2023/01/30/ai-chatgpt-regulation-laws.
[3] Ashley Gold supra note 2.
[4] Debra Cassens Weiss, Latest Version of ChatGPT Aces Bar Exam with Score nearing 90th Percentile, ABA J. (Mar. 16, 2023), https://www.abajournal.com/web/article/latest-version-of-chatgpt-aces-the-bar-exam-with-score-in-90th-percentile.
[5] See e.g., Lakshmi Varanasi, OpenAI just announced GPT-4, an Updated Chatbot that can pass everything from a Bar Exam to AP Biology. Here’s a list of Difficult Exams both AI Versions have passed., Bus. Insider (Mar. 21, 2023), https://www.businessinsider.com/list-here-are-the-exams-chatgpt-has-passed-so-far-2023-1.
[6] Stephanie Stacey, ‘Robot Lawyer’ DoNotPay is being Sued by a Law Firm because it ‘does not have a Law Degree’, Bus. Insider(Mar. 12, 2023), https://www.businessinsider.com/robot-lawyer-ai-donotpay-sued-practicing-law-without-a-license-2023-3
[7] Sara Merken, Lawsuit Pits Class Action Firm against ‘Robot Lawyer’ DoNotPay, Reuters (Mar. 9, 2023), https://www.reuters.com/legal/lawsuit-pits-class-action-firm-against-robot-lawyer-donotpay-2023-03-09/.
[8] Complaint at 2, Jonathan Faridian v. DONOTPAY, Inc., Docket No. CGC-23-604987 (Cal. Super. Ct. 2023).
[9] Id. at 10.
[10] Riddhi Setty, First AI Art Generator Lawsuits Threaten Future of Emerging Tech, Bloomberg L. (Jan. 20, 2023), https://news.bloomberglaw.com/ip-law/first-ai-art-generator-lawsuits-threaten-future-of-emerging-tech.
[11] Complaint at 1, 13, Sarah Andersen et al., v. Stability AI Ltd., et al., Docket No. 3:23-cv-00201 (N.D. Cal. 2023).
[12] Id. at 12; Complaint at 1, Jonathan Faridian v. DONOTPAY, Inc., Docket No. CGC-23-604987 (Cal. Super. Ct. 2023).
[13] See e.g., Chris Stokel-Walker, Generative AI is Coming for the Lawyers, Wired (Feb. 21, 2023), https://www.wired.com/story/chatgpt-generative-ai-is-coming-for-the-lawyers/.
[14] Dan Mangan, Lawyers could be the Next Profession to be Replaced by Computers, CNBC (Feb.17, 2017), https://www.cnbc.com/2017/02/17/lawyers-could-be-replaced-by-artificial-intelligence.html.
[15] Stokel-Walker, supra note 13.
[16] Complaint at 7, Jonathan Faridian v. DONOTPAY, Inc., Docket No. CGC-23-604987 (Cal. Super. Ct. 2023).
[17] Debra Cassens Weiss, Traffic Court Defendants lose their ‘Robot Lawyer’, ABA J. (Jan. 26, 2023), https://www.abajournal.com/news/article/traffic-court-defendants-lose-their-robot-lawyer#:~:text=Joshua%20Browder%2C%20a%202017%20ABA,motorists%20contest%20their%20traffic%20tickets..
[18] See Justin Snyder, RoboCourt: How Artificial Intelligence can help Pro Se Litigants and Create a “Fairer” Judiciary, 10 Ind. J.L. & Soc. Equality 200 (2022).
[19] See Complaint, Sarah Andersen et al., v. Stability AI Ltd., et al., Docket No. 3:23-cv-00201 (N.D. Cal. 2023).
[20] Id. at 10–12.
[21] See e.g., Dr. Lance B. Eliot, Legal Doomsday for Generative AI ChatGPT if Caught Plagiarizing or Infringing, warns AI Ethics and AI Law, Forbes (Feb. 26, 2023), https://www.forbes.com/sites/lanceeliot/2023/02/26/legal-doomsday-for-generative-ai-chatgpt-if-caught-plagiarizing-or-infringing-warns-ai-ethics-and-ai-law/?sh=790aecab122b.
[22] Ron. N. Dreben, Generative Artificial Intelligence and Copyright Current Issues, Morgan Lewis (Mar. 23, 2023), https://www.morganlewis.com/pubs/2023/03/generative-artificial-intelligence-and-copyright-current-issues.
[23] Nick Vivarelli, Italy’s Ban on ChatGPT Sparks Controversy as Local Industry Spars with Silicon Valley on other Matters, Yahoo! (Apr. 3, 2023), https://www.yahoo.com/entertainment/italy-ban-chatgpt-sparks-controversy-111415503.html; Adam Rowe, Germany might Block ChatGPT over Data Security Concerns, Tech.Co (Apr. 3, 2023), https://tech.co/news/germany-chatgpt-data-security.