Steptoe has been tracking the fast-moving developments in artificial intelligence both in the United States and internationally. Below is an update on recent legal and policy developments related to AI, with a focus on intellectual property and high-profile policy issues. 

AI Intellectual Property Update:

  • Microsoft CEO Satya Nadella testified in the DOJ’s antitrust suit against Google on Monday, stating that he believes AI could further entrench Google’s dominance:
    • The tech giants are competing over the “vast troves” of content needed to train AI systems, and Nadella testified to the concern that publishers and platforms may sign exclusive deals to allow only Google to use their data in that manner: In addition to training its models on search queries, Google has also been moving to secure agreements with content publishers to ensure that it has exclusive access to their material for AI training purposes, according the Microsoft CEO. “When I am meeting with publishers now, they say Google’s going to write this check and it’s exclusive and you have to match it,” he said.
    • Microsoft CEO warns of ‘nightmare’ future for AI if Google’s search dominance continues: the enormous amount of search data that is provided to Google through its default agreements can help Google train its AI models to be better than anyone else’s — threatening to give Google an unassailable advantage in generative AI that would further entrench its power. “This is going to become even harder to compete in the AI age with someone who has that core… advantage,” Nadella testified . . . Now, Nadella has said that the same data advantage could create “even more of a nightmare” as large language models compete on the basis of the data they are trained on.
  • Kevin Scott, Microsoft’s CTO and EVP of AI, told the Verge that:
    • “expert contributions that you can make to the model’s training data, particularly in this step called reinforcement learning from human feedback, can really substantially improve the quality of the model in that domain of expertise…through selection of training data — you can get a model to be very high performing in a particular domain.”
    • Regarding AI copyright issues, Scott stated that while “everybody thinks that all of the training that is being done right now is covered by fair use” there are outstanding issues that will have to be decided by judges or lawmakers. Scott also emphasized that “someone who pours their heart and soul into writing a piece of fiction… need[s] to be compensated for it[s use in a training dataset]” but did not discuss what a potential remuneration scheme might look like.

AI Policy Update:

Federal:

  • Congress and AI News
    • Sen. Mark Warner (D-Va.) and his colleagues have taken big swings at tech legislation in recent years only to come up short, so he’s urging a different approach as Congress looks to regulate artificial intelligence. His pitch: be less ambitious. (Politico 9/28/23)
    • Sen. Todd Young (R-Ind.) said the current Congress has a shot to pass legislation regulating artificial intelligence — even as he works to ensure lawmakers know what the technology does. (Politico 9/27/23)
    • Rep. Greg Murphy (R-N.C.), a co-chair of the GOP Doctors Caucus, called for artificial intelligence in health care to be regulated at the state level first, not nationally. (Politico 9/27/23)
  • The National Institute of Standards and Technology has closed a six-month public comment period on a report that “defines terminology in the field of adversarial machine learning,” as NIST builds guidance on cybersecurity and other issues related to artificial intelligence. (Inside Cybersecurity 10/2/23)

State:

  • Pennsylvania Governor Josh Shapiro signed an executive order to create an AI governing board that will guide the commonwealth’s use of generative artificial intelligence. The order establishes “core values” for the Pennsylvania executive branch to consider to govern the use of generative AI in Pennsylvania including privacy, safety, fairness, accuracy, and employee empowerment. As part of the executive order, the Shapiro administration will also create a two-year fellowship program for post-bachelor, masters’ and doctoral candidates who will work on AI issues with state agencies. The Governor stated that “…we need to embrace AI, not fear it, but we need to deploy it responsibly.”

International:

  • The UK’s Musicians Union is pointing to the AI provisions in the recent strike-ending agreement between the WGA and the AMPTP as an example of “what can be achieved to protect writers and performers from the threats of AI through collective bargaining.”