As AI continues to evolve, businesses need to be aware of the benefits and business risks of this emerging technology. Our attorneys assist in facilitating business opportunities for clients, while also managing business and legal risks. For clients who wish to facilitate their business growth through the use of AI, we take advantage of our proficiencies in multiple areas of the law at which AI intersects in order to advise clients how to use AI safely and take advantage of its many benefits, including its cost-effectiveness and efficiency. Our AI practice therefore consists of attorneys from across our Cybersecurity & Data Privacy, Intellectual Property, Labor & Employment, and Business Transactions teams.
While there is currently no comprehensive federal legislation on artificial intelligence, there has been increased focus on the potential for regulation of AI at the federal level as well as state, local, and non-U.S. privacy laws that may apply to AI platforms. A growing emphasis on environmental, social, and governance (ESG) and AI impact has increased regulatory focus on transparency and fairness in the use of AI in the employment context and the need for procedures to protect against bias and misuse. Our attorneys can assist with drafting AI ethics policies and guidelines that align with ESG principles, as well as advising clients on how to monitor AI’s uses and outputs to remain in compliance with any existing laws relating to AI.
Below are some of our capabilities related to AI:
- Commercial Contracts & License Agreements
- Drafting, reviewing, and negotiating agreements for licensing or uses of clients’ or third parties’ generative AI tools
- Preparing protections for clients seeking or providing AI licenses
- Updating existing agreements to address AI issues with vendors and customers
- Advising on strategic partnerships with companies offering AI-based services
- Intellectual Property
- Use of copyright or trademark assets to train AI models, including addressing data scraping
- Navigation of open-source software licenses
- Counsel pertaining to authorship and ownership of AI-generated works
- Mergers and Acquisitions
- Drafting of representations and warranties regarding use of AI assets and its associated risks
- Negotiation of specific limitation of liability and indemnification provisions to address risks identified in due diligence
- Inclusion of interim operating covenants to preserve the overall quality and performance of AI systems
- Implementation of comprehensive due diligence processes to assess and value potential risks associated with AI-generated assets
- Data Privacy
- Collection of personal data and its use to train AI systems
- Advanced facial, retinal, or fingerprint recognition
- Risk assessments and compliance
- Employment
- Auditing for implicit bias or disparate impact when an Automated Employment Decision-Making Tool (AEDT) is used
- Auditing AI outputs for inaccuracy, discrimination, and disparate impact
- Best practices for the vetting of the quality of machine learning training data
- Officer, employee, and HR training on the ethical use of AI
- Drafting of company-wide AI policies and frameworks
- Litigation & Liability
- “Hallucination” liabilities based upon contractual representations and products liability theories (property loss damage and personal injury)
- Admissibility, based upon acceptance and reliability criteria, of AI-based evidence in court
- Regulatory requests and requests for algorithm transparency
For companies wishing to capitalize on the many capabilities that AI has to offer, working with AI-literate legal professionals is a crucial step to mitigating risk. This new frontier requires an interdisciplinary and collaborative approach, one that takes a holistic view of how AI will converge with multiple areas of clients’ businesses and the law.
