Shearman & Sterling LLP Leveraging the Broad Potential of Artificial Intelligence While Mitigating the Risks | 10
Limiting Exposure and Liabilities
Since artificial intelligent models are trained on data
harvested from the internet, books, and articles,
several class-action lawsuits have been filed against AI
platforms alleging copyright infringement. For example,
comedian Sarah Silverman, along with other authors,
accused two AI platforms of using their copyrighted
works without credit or compensation.
16
The lawsuits
accuse the platforms of training their algorithm using
"shadow libraries" that contain the texts of thousands
of books.
17
Similarly, a third AI platform is the subject
of another class-action lawsuit that was filed this
summer.
18
The complaint accuses the AI platform
of training its AI tool using copyrighted works without
notice, consent, or fair compensation.
19
These lawsuits will address the pending question about
whether the use of copyrighted works to train AI models
constitutes copyright infringement. It is still possible
that these lawsuits could be initiated against users of
these AI platforms because the element of intent is not
a requirement for copyright infringement claims. Users
of these AI platforms who create new work product that
relies on elements from copyrightable works could be
subject to liability.
While some AI platforms have agreed to indemnify
their users against copyright claims, companies
should consider whether to include separate indemnity
clauses in their contracts with third party AI vendors
to limit their exposure.
20
CONCLUSION
The potential and promise of Generative AI is
developing remarkably quickly, as are the regulatory
regimes that attempt to place guardrails around its
use. Companies need to responsibly and profitably
incorporate artificial intelligence in their businesses
while mitigating the associated risks, establishing
appropriate oversight and governance, ensuring
appropriate disclosures, and resolving other regulatory
and legal challenges arising from the deployment of AI.
In order to maximize the significant value AI provides,
companies should consider engaging legal counsel
who have a deep understanding of AI and are well-
versed in corporate governance.
16
See Zachary Small, "Sarah Silverman Sues OpenAI and Meta Over
Copyright Infringement," https://www.nytimes.com/2023/07/10/arts/
sarah-silverman-lawsuit-openai-meta.html (July 10, 2023).
17
Id.
18
See Lauren Bert, "Google Accused Of 'Putting World at
Peril' Chasing AI Profits," https://www.law360.com/california/
articles/1698561?utm_source=shared-articles&utm_
medium=email&utm_campaign=shared-articles (July 11, 2023).
19
Id.
20
See Isaiah Portiz, "IBM Joins Microsoft, Adobe in Protecting AI
Customers from Suits," https://news.bloomberglaw.com/ip-law/
ibm-joins-microsoft-adobe-in-protecting-ai-customers-from-suits
(September 28, 2023).
