(2023-2024)
Articles
The GPTJudge: Justice in a Generative AI World
Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, and Molly (Yiming) Xu
Date posted: 12-1-2023
Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to hire forensic experts to address AI-generated evidence, the ability of juries to discern authentic from fake evidence, and whether GenAI will overwhelm the courts with AI-generated lawsuits, whether vexatious or otherwise. GenAI systems have the potential to challenge existing substantive intellectual property (“IP”) law by producing content that is machine, not human, generated, but that also relies on human-generated content in potentially infringing ways. Finally, GenAI threatens to alter the way in which lawyers litigate and judges decide cases. This article discusses these issues, and offers a comprehensive, yet understandable, explanation of what GenAI is and how it functions. It explores evidentiary issues that must be addressed by the bench and bar to determine whether actual or asserted (i.e., deepfake) GenAI output should be admitted as evidence in civil and criminal trials. Importantly, it offers practical, step-by-step recommendations for courts and attorneys to follow in meeting the evidentiary challenges posed by GenAI. Finally, it highlights additional impacts that GenAI evidence may have on the development of substantive IP law, and its potential impact on what the future may hold for litigating cases in a GenAI world.
Topic: eDiscovery, Media & Communications, Patents & Technology, Generative AI, Artificial Intelligence
The Lack of Responsibility of Higher Educaiton Institutions in Addressing Phishing Emails and Data Breaches
Muxuan (Muriel) Wang
Date posted: 3-30-2024
Higher education institutions (HEIs) are highly susceptible to cyberattacks, particularly those facilitated through phishing, due to the substantial volume of confidential student and staff data and valuable research information they hold. Despite federal legislations focusing on bolstering cybersecurity for critical institutions handling medical and financial data, HEIs have not received similar attention. This Note examines the minimal obligations imposed on HEIs by existing federal and state statutes concerning data breaches, the absence of requirements for HEIs to educate employees and students about phishing attacks, and potential strategies to improve student protection against data breaches.
Topic: Patents & Technology
Virtual Gaming, Actual Damage: Video Game Design That Intentionally and Successfully Addicts Users Constitutes Civil Battery
Allison Caffarone
Date posted: 4-11-2024
In recent years, there has been increased academic interest in both the neurological effects of compulsive gaming and the potential tort liability of game developers who scientifically engineer games in order to addict users. Scholars from various disciplines are currently debating the scope and potential solutions to the problems associated with Gaming Disorder, now a globally recognized illness. This article contributes to this discussion by offering a multidisciplinary analysis of the scope of video game addiction, its neurological bases, and its relation to the legal rights and responsibilities of victims and game developers. In addition, this article explores the practical significance of, as well as normative and moral foundations for, holding video game developers accountable. It argues the novel theory that video game developers who succeed in their expressed intention to rewrite the neural pathways of gamers should be held liable for the intentional tort of battery. It further contends that private redress based on an intentional battery cause of action is preferable to actions grounded in negligence or failure to warn because in a battery suit, there is no need to prove that the plaintiff was harmed—offensive contact suffices. Moreover, battery claims may be preferable as a matter of public policy. Game developers will be more inclined to reconsider their actions if they are unable to pass off costs of improprieties to their insurers. Such deterrence is particularly desirable where defendants are committing intentional wrongs for financial gain. Game developers will not stop preying on the weaknesses of their users without financial motivation. Recognizing their behavior as tortious is necessary both to motivate them to behave as upstanding corporate citizens and to allow the victims their day in court. To the extent that such suits do not halt game developers’ manipulative behavior, they have the potential to lead to the use of warning labels and the adoption of educational initiatives to inform gamers (and to the extent they are minors, their parents or legal guardians) of the risks associated with these predatory games.
Topic: eCommerce & Business, eCommerce
Barcoding Bodies: RFID Technology and the Perils of E-Carceration
Jackson Samples
Date posted: 4-11-2024
Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment.
Topic: Patents & Technology
Beyond Patents: Incentive Strategies for Ocean Plastic Remediation Technologies
Jacob Stotser
Date posted: 4-27-2024
With a garbage truck’s worth of plastic being dumped in the ocean each minute, there is a dire need for effective technological solutions aimed at mitigating the marine plastic pollution problem. However, the reliance of the U.S. patent system on market demand to incentivize this type of innovation has proven insufficient in light of the peculiarities of “green” technologies. To remedy this, this article proposes a multi-faceted incentivization approach that looks beyond the U.S. Patent and Trademark Office to stimulate the development of remediation technologies through comprehensive regulatory interventions, the establishment of prize funds and other alternative incentive mechanisms, and targeted reforms to patent procedures.
Topic: Patents & Technology
Decoding Cryptocurrency Taxes: The Challenges for Estate Planners
Max Angel
Date posted: 5-5-2024
In this article, Angel explores the unique challenges of estate planning with cryptocurrency, which include accurately valuing those assets, preserving their value, and addressing the complex tax implications of transferring cryptocurrency to heirs.
Topic: eCommerce, eCommerce & Business