On November 1, 2023, the U.S. Supreme Court engaged in a thought-provoking deliberation concerning the intersection of the First Amendment to the U.S. Constitution and U.S. trademark law, Vidal v. Elster, Supr. Ct. Case No. 22-704. The case considers whether the refusal of the U.S. Patent and Trademark Office (USPTO) to register the phrase TRUMP TOO SMALL as a trademark violates the free speech right under the First Amendment. The case highlights the ongoing debate surrounding political expression and government regulation.
On October 18, 2023, the U.S. Court of Appeals for the Federal Circuit reversed and remanded a U.S. Trademark Trial and Appeal Board (TTAB) decision in Great Concepts, LLC v. Chutter, Inc., in which the Board canceled Great Concepts’ trademark registration based on a fraudulent Section 15 declaration of incontestability. In doing so, the Federal Circuit held that the TTAB lacks authority to cancel a registration based on a fraudulent incontestability declaration, closing the door to cancellation claims premised on fraudulent statements on which the USPTO did not rely either to issue or maintain a registration.
In a move that underscores the escalating tension between the music industry and artificial intelligence (AI), many of the world’s largest music publishers have filed a joint lawsuit against AI startup Anthropic over song lyrics. The suit alleges that Anthropic’s chatbot, Claude, scrapes lyrics from the publishers’ catalogs without permission and thereby infringes on copyrighted material. It serves as yet another example of generative AI companies facing increasing pressure over their use of intellectual property to develop the groundbreaking, generative AI technology.
In 2021, the Department of Homeland Security started a process of adopting regulations for mobile driver’s licenses. The Transportation Security Administration (TSA) has since begun allowing mobile driver’s licenses as identification at airports, and several states jumped on the bandwagon, offering mobile driver’s licenses through state-sponsored apps or via Apple and Google Wallet. Now, the TSA has proposed new regulations that would waive REAL ID requirements for state-issued mobile driver’s licenses, but privacy advocates including the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) warn this move may put consumers’ personal information at risk.
In speaking at this past week’s #shifthappens Conference, I had the pleasure of discussing both the potential and pitfalls posed by generative AI with fellow panelists David Pryor Jr., Alex Tuzhilin, Julia Glidden and Gerry Petrella. Our wide-ranging discussion covered how regulators can address the privacy, security and transparency concerns that underlie this transformative technology. Though no one would deny the inherent complexity of many of these challenges, our session—as well as many other discussions during the conference—suggest some key takeaways:
On October 20, at 9:15 a.m., colleague and frequent contributor Sam Eichner will present on “Copyright Implications of Generative AI” during the Copyright and Trademark track at the 2023 AIPLA Annual Meeting.
The event will host over 1,000 IP practitioners and leaders and cover a wide range of IP-related topics, including the ethical implications of AI in research and development, trademarks and the First Amendment, Standard Essential Patents licensing, the PTAB, Section 101, and transformative fair use.
For more information, please see the event page.
The UK and U.S. Governments have now formalized the UK-U.S. Data Bridge. The U.S. Attorney General designated the UK as a “qualifying state” for the purposes of the Executive Order 14086 on September 18, 2023, and the UK regulations implementing the Data Bridge are scheduled to take effect on October 12, 2023. From October 12, 2023, the Data Bridge will therefore operate as an extension of the EU-U.S. Data Privacy Framework (DPF) to enable the unrestricted movement of personal data between the UK and certified U.S. entities. For more information about the DPF, see our earlier briefing here.
Alicia McKnight and Brian Finch urge energy industry players to evaluate cybersecurity risks posed by increasingly interconnected and internet-enabled power grids in an article which was published in the latest edition of Pratt’s Privacy & Cybersecurity Law Report.
On August 18, 2023, the U.S. District Court for the District of Columbia denied Dr. Stephen Thaler’s motion and granted the U.S. Copyright Office’s cross motion to dismiss Thaler’s complaint. The facts of Thaler’s struggle to overcome the Copyright Office’s Human Authorship Requirement and register copyright in an AI-generated work are recounted here.
In this week’s News of Note, ransomware attacks break records and wipe data for a majority of a cloud provider’s customers, while one RaaS case delivers useful details about cybercriminal techniques and tactics. Also, the development of algorithms to protect against quantum computers continues, facial recognition software nabs an elderly criminal, and more.