A Look Ahead: Updates on AI in Litigation to Watch

As a continuation of our artificial intelligence (AI) series, Loeb & Loeb Litigation partner Michael Donner discusses AI in litigation trends for 2024 and identifies common themes among recent cases involving the use of AI and its impact on privacy, consumer safety, intellectual property and other prevalent concerns.

While AI isn’t a new concept, its popularity and advancement have grown in the past few years as the cutting-edge technology has evolved and become more widely used. However, as AI develops, it leaves a trail of legal challenges with which the law and governing bodies have yet to fully grapple. It begs the following question: How will AI impact the litigation landscape? How can companies use recent cases and legal counsel to stay ahead of regulations that are still works in progress? Michael covers these topics along with emerging trends to keep on your radar in 2024.

Tell us about your practice and the kinds of litigation matters you generally handle.

As a business litigator and trial lawyer, I primarily focus my practice on helping the firm’s clients resolve their most significant business challenges through counseling, negotiation, litigation, arbitration and trial. I handle a variety of subject matter areas within litigation, including class actions, contract enforcement, insurance recovery, professional liability and more. In the context of AI, I’ve been actively working with clients to identify areas of risk and counseling them on best practices to address that risk.

Given the increasing integration of artificial intelligence in various industries in 2023, how have you observed AI impacting the litigation landscape? 

In recent months, the number of new lawsuits related to generative AI has significantly increased, both in California and throughout the nation. Various rulings to date in those lawsuits provide a window into how the courts might address the privacy, consumer safety and intellectual property protection issues raised by this new, evolving technology. 

The majority of the new lawsuits are class actions that have been filed against the major players in the generative AI sector. In those class actions, the plaintiffs claim that their public data was scraped without authorization to train and develop AI platforms, and thus that the developers of the platforms violated their intellectual property and other rights. Other recent lawsuits involve disputes between competing AI developers in which one has alleged that the other inappropriately misappropriated its proprietary intellectual property. In yet another lawsuit, which is a bit of an outlier, a public figure sued a generative AI company for defaming him after the company’s AI platform allegedly generated false facts about him.

To date, courts have been reluctant to impose liability on AI developers and have expressed skepticism of claims made by plaintiffs in their pleadings that unless stopped, generative AI has the potential to negatively impact humankind. The courts also have dismissed a number of cases on procedural grounds, including the plaintiff’s lack of standing to sue.

As we enter 2024, what new and emerging AI trends do you foresee playing a significant role in litigation, and how might they present unique legal challenges for businesses?

There are several common themes in recently filed litigation that we could see repeated in 2024. One involves the legality of data scraping; that is, whether publicly available data may be taken off the internet and used to train and develop AI platforms. A second involves the application of the doctrine of fair use—the use of copyrighted material without the copyright holder’s consent under certain circumstances—with respect to the intellectual property used to train and develop AI platforms. And the third relates to a plaintiff’s standing to sue. As the courts address issues like these, businesses will need counseling to ensure that they are complying with the latest legal developments.

What should companies be doing now if they want to best protect themselves from litigation?

Recent trends suggest that plaintiffs’ attorneys intend to widen the scope of their suits beyond just AI developers and that in the future, they could target users of generative AI products or services. Businesses using such products and services must fully understand their AI technology and the risks associated with its use. They should also consult with their legal counsel when evaluating AI-related contracts, vetting vendors of AI product and services, and ensuring their compliance with the latest case law and regulations.