Artificial Intelligence: Law & Litigation

AI litigation is happening now. The recent success of AI is driven by powerful computing systems that "learn" from the deep study of vast troves of data and then use the new learnings to make nuanced decisions without direct human engagement. It has brought us medical diagnostic advances, useful virtual assistants, and tempting relevant advertising. With this increase in market success has come the predictable increase in litigation, which is why Artificial Intelligence: Law & Litigation, 2022 Edition should be added to any practitioner's library.
Publisher: Matthew Bender

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2022 Edition
ISBN: 9781663324993
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2022 Edition
ISBN: 9781663325006
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2022 Edition
ISBN: 9781663325006
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The 2022 Edition of Artificial Intelligence: Law & Litigation discusses judicial opinions from the past five years that discuss Artificial Intelligence. The treatise organizes AI rulings by substantive legal area. For ease of human use, the legal areas are organized alphabetically. The chapters are Antitrust, Communications Decency Act, Contracts, Copyright, Immigration, Patents, Privacy, Products Liability, Section 1983, Securities, Trade Secrets and Trademark. Each chapter reflects an appellate approach to AI litigation strategy. An appellate approach to law coheres applicable legislative statutes, judicial rulings, and sound policy to reach the correct ruling for a particular dispute. To apply this approach to AI litigation, however, lawyers must first learn how to talk about AI.

Accordingly, the treatise begins with a discussion of the terminology needed for a conversation about AI. And while the statutory words do not refer to AI, the appellate approach starts with the relevant statutory words. Each chapter, therefore, begins with the most relevant statutes. In addition to clarity on terminology and familiarity with the key statutes, the litigator must know AI precedent. For each subject area, therefore, the treatise provides a careful discussion of the relevant cases. Along with the terminology, applicable statutes, and cases, each chapter also includes commentary to guide future strategies.

As the collected cases are demonstrating, "[l]aw anticipates technology." The litigation process allows law to develop language, understanding, and practice that normalizes AI. The "oldest cases routinely provide the narrative from which we decide the newest technological issues." But even so, today AI often brings fear into a legal conversation. Will the use of AI render us all powerless? As Supreme Court Justice Elena Kagan recently put it while criticizing the use of machine learning in determining voting districts, "someplace along this road, 'we the people' become sovereign no longer." A final chapter uses the Emotional Intelligence moniker to bring attention to judicial reactions to the power of AI.

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Table of contents

CHAPTER 1 What is “Artificial Intelligence”?
§ 1.01 Overview
§ 1.02 How Human Neural Networks Work: A Simplified Summary
§ 1.03 Artificial Neural Networks
CHAPTER 2 Antitrust
§ 2.01 Antitrust
§ 2.02 Dual-Sided Markets
§ 2.03 AI Merger Allowed
§ 2.04 Platform Competition and Opportunity Act of 2021
§ 2.05 AI Standard Setting
§ 2.06 AI Antitrust Cases by Industry Sector
CHAPTER 3 Communications Decency Act
§ 3.01 Communications Decency Act
§ 3.02 Section 230 Applies to AI Defendants
§ 3.03 Section 230 May Not Apply to AI Defendants
§ 3.04 Yesterday & Today & Tomorrow
§ 3.05 AI Communications Decency Act Cases by Industry Sector
CHAPTER 4 Contracts
§ 4.01 Contracts
§ 4.02 Breach of Contracts
§ 4.03 Note
§ 4.04 AI Contracts Cases by Industry Sector
CHAPTER 5 Copyright
§ 5.01 Copyright Litigation
§ 5.02 Section 102: Copyrightable AI Data
§ 5.03 Section 107: Fair Use of Copyrightable AI Data
§ 5.04 AI Copyright Experts
§ 5.05 Feist Forward?
§ 5.06 AI Copyright Cases by Industry Sector
CHAPTER 6 Employment
§ 6.01 Employment Litigation
§ 6.02 Non-Compete and Non-Disclosure Agreements
§ 6.03 Fiduciary Duty
§ 6.04 Note
§ 6.05 AI Employment Cases by Industry Sector
CHAPTER 7 Immigration
§ 7.01 Immigration Litigation
§ 7.02 Law
§ 7.03 AI Plaintiff Prevails
§ 7.04 Personal Note
§ 7.05 AI Immigration Cases by Industry Sector
CHAPTER 8 Patent Litigation
§ 8.01 Patent Litigation
§ 8.02 Section 101: Patentable Subject Matter
§ 8.03 Section 112: Claim Construction
§ 8.04 Section 112: Written Description and Enablement
§ 8.05 Increased Role of Federal Circuit in AI Litigation
§ 8.06 AI Patent Cases by Industry Sector
CHAPTER 9 Privacy
§ 9.01 Privacy Litigation
§ 9.02 Fourth Amendment Aura
§ 9.03 Illinois: Biometric Information Privacy Act
§ 9.04 California Invasion of Privacy Act
§ 9.05 Washington State
§ 9.06 Federal AI Privacy Litigation
§ 9.07 Fourth Amendment Aura Redux
§ 9.08 AI Privacy Cases by Industry Sector
CHAPTER 10 Products Liability
§ 10.01 AI Products Liability
§ 10.02 Products Liability Litigation
§ 10.03 AI Product or Service?
§ 10.04 Note on Automotive AI
§ 10.05 AI Products Liability Cases by Industry Sector
CHAPTER 11 Section 1983
§ 11.01 Section 1983 Litigation
§ 11.02 Section 1983
§ 11.03 Note on AI and Section 1983
§ 11.04 AI Section 1983 Cases by Industry Sector
CHAPTER 12 Securities
§ 12.01 Securities Litigation
§ 12.02 Securities Law
§ 12.03 AI Defendants Prevail
§ 12.04 Note: SEC Actions Against “AI” Defendants
§ 12.05 AI Securities Cases by Industry Sector
CHAPTER 13 Trade Secrets
§ 13.01 AI Trade Secrets Litigation
§ 13.02 AI Trade Secret Defined
§ 13.03 AI Trade Secret Allegations Dismissed
§ 13.04 AI Trade Secret Allegations Not Dismissed
§ 13.05 Note: Overlap with Patent Litigation
§ 13.06 AI Trade Secrets Cases by Industry Sector
CHAPTER 14 Trademark
§ 14.01 Trademark
§ 14.02 The Lanham Act
§ 14.03 AI Defendant Prevails: No Likelihood of Confusion
§ 14.04 AI Defendant Does Not Prevail: Likelihood of Confusion
§ 14.05 Note
§ 14.06 AI Trademark Cases by Industry Sector
CHAPTER 15 Emotional Intelligence
§ 15.01 Emotional Intelligence
§ 15.02 Is DABUS an “Inventor”?
§ 15.03 Note: Human Emotions and AI Litigation
APPENDIX A AI Cases by Industry Sector
APPENDIX B Search Term Methodology
APPENDIX C Editorial Notice
APPENDIX D Selected Bibliography
Table of Cases
Table of Statutes