Insights

In a unanimous opinion issued by the D.C. Circuit on March 18, 2025, the Court of Appeals affirmed denial of Dr. Stephen Thaler’s application to register a copyright protection for a work created by his generative artificial intelligence system, holding that the Copyright Act requires human authorship.

In what may be the first lawsuit of its kind, a student has sued Yale University alleging that he has been falsely accused of using artificial intelligence on a final exam. The complaint, filed in February, could have far-reaching implications for both the use of AI by students and issues related to academic honesty.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

Significant shifts in U.S. technology policy are taking shape at the start of the new administration. This is especially true in the field of artificial intelligence (AI), where President Trump revoked President Biden’s Executive Order 14110, titled “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” as part of his flurry of Day One executive actions. The administration is now moving quickly to put its own stamp on this area in an effort to strengthen U.S. AI leadership and competitiveness and outpace other nations, particularly the People’s Republic of China.

On February 4, 2025, California Assemblywoman Rebecca Bauer-Kahan introduced AB 412, titled the AI Copyright Transparency Act (the “Act”), which is aimed at increasing greater transparency when copyrighted materials are used as training data for Generative AI (“GenAI”) models and systems. If passed, the Act would require developers who use copyrighted materials as part of their training dataset to disclose this use to the copyright owners.

The U.S. Copyright Office has released Part 2 of its Report on the legal and policy issues related to copyright and artificial intelligence (AI). This part of the Report, issued on January 29, 2025, focuses on the copyrightability of outputs created using generative AI. Overall, the Copyright Office concludes that existing law is sufficient to resolve questions of AI usage in copyrighted works, and sufficient human contributions to AI-generated outputs that would constitute authorship will be analyzed on a case-by-case basis. The Office declined to support a separate copyright registration analysis for AI works, but provided new examples of how using AI as a tool could support sufficient authorship for copyrightability.

Crowell Global Advisors joined the industry delegation to the 5thASEAN Digital Ministers’ Meeting (ADGMIN) hosted by Thailand from January 16-17, 2025. The official theme for this year was “Secure, Innovative, Inclusive: Shaping ASEAN’s Digital Future,” with a focus on promoting safe adoption of emerging technologies by ASEAN Member States (AMS).

Artificial intelligence is now a mainstay in our daily lives. It’s in our phones and computers. It helps us draft emails and learn math. It recommends purchases and guides our online searches. It’s everywhere—and every sign suggests that it’s here to stay.

On Wednesday, October 16, 2024, New York’s Department of Financial Services (DFS) announced new guidance aimed at identifying and providing a blueprint for protecting against AI-specific cybersecurity risks.  Motivated primarily by advancements in AI that substantially impact cybersecurity—including facilitating new ways to commit cybercrime—DFS’s guidance aims to specifically protect New York businesses but applies to all companies concerned with increasing their cybersecurity and managing risks posed by emerging technologies. The guidance addresses “most significant” AI-related threats to cybersecurity that organizations should consider when they are developing a cybersecurity program, internal protocols, or implementing cybersecurity controls—as well as recommendations for those cybersecurity programs.

On September 24, 2024, the Office of Management and Budget (OMB) released Memorandum M-24-18, Advancing the Responsible Acquisition of Artificial Intelligence in Government (Memo).  The 36-page Memo builds on OMB’s March 2024 guidance governing federal agencies’ use of AI, Memorandum M-24-10, which we reported on here.  The Memo addresses requirements and guidance for agencies acquiring AI systems and services, focusing on three strategic goals: (i) ensuring collaboration across the federal government; (ii) managing AI risks and performance; and (iii) promoting a competitive AI market.

The USPTO has just issued an update to its guidance on subject matter eligibility, discussing the application of these guidelines to emerging technologies such as AI-related and AI-assisted inventions.  These guidelines are currently open to public comment until September 16.   

Amid the continued exponential rise and adoption of artificial intelligence (AI) systems, the Council of Europe set a unique precedent earlier this year by adopting the first-of-its-kind legally binding international AI framework. Aimed at ensuring the respect of human rights, the rule of law, and democracy in the use of AI systems, the framework strikes an important balance in addressing the risks throughout the lifecycle of an AI system without hampering innovation.

Universal Music Group, Sony Music, and Warner Music Group., represented by the Recording Industry Association of America (RIAA), have sued online music AI generators, Suno AI (“Suno”) and Udio AI (“Udio”), for alleged copyright infringement, accusing them of replicating their artists’ music using AI technology. The Suno complaint is filed in the U.S. District Court for the District of Massachusetts, and the Udio complaint is filed in the U.S. District Court for the Southern District of New York.  The lawsuits also target Alphabet Inc., Google's parent company. The RIAA is asking for damages amounting to up to $150,000 per infringing song, which could amount to hundreds of millions of dollars. 

In Percipient.ai, Inc. v. United States, the Federal Circuit considered Percipient.ai Inc.’s (Percipient) protest arising out of the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, for the improvement of the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s protest was unusual—filed in 2023, it related to a task order NGA awarded to CACI, Inc. (CACI) two years earlier, for which Percipient did not (and could not) bid.  But Percipient’s protest did not challenge the award to CACI.  Instead, Percipient challenged NGA’s (and CACI’s) alleged failure, during task order performance, to conduct sufficient market research as to the commercial availability of AI software—for which Percipient already had a commercial offering that purportedly met NGA’s needs—before CACI began developing its own software at significantly higher cost.  Percipient alleged this failure violated 10 U.S.C. § 3453, which establishes a preference for commercial items/services and instructs agencies to procure them “to the maximum extent practicable.”

On May 17, 2024, Colorado Governor Jared Polis signed S.B. 24-205, Consumer Protections for Artificial Intelligence, the first state law in the country to regulate employers’ use of artificial intelligence in employment decisions.  This law regulates both companies that develop and companies that deploy “high-risk” artificial intelligence systems (“AI systems”).  In particular, the law sets forth a set of provisions designed to ensure that developers and deployers use “reasonable care” to protect consumers from any “known or reasonably foreseeable risks to algorithmic discrimination” arising from the use of the AI system.  The law then creates a rebuttable presumption, for both deployers and developers, that reasonable care was used if they meet specific requirements and disclose key information about high-risk AI systems.  This law will be enforced by the Colorado Attorney General, and a violation of the law constitutes an unfair trade practice.  The law becomes effective on February 1, 2026.

Now more than ever, federal contractors find themselves at the intersection of innovation and regulation, particularly in the realm of Artificial Intelligence (AI).  AI is now incorporated into a broad range of business systems, including those with the potential to inform contractor employment decisions.  For that reason, the Office of Federal Contract Compliance Programs (OFCCP) has issued new guidance entitled “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors” (the “AI Guide”).  OFCCP issued the AI Guide in accordance with President Biden’s Executive Order 14110 (regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence”), which we reported on here.  The AI Guide provides answers to commonly asked questions about the use of AI in the Equal Employment Opportunity (EEO) context.  The AI Guide also offers “Promising Practices,” which highlight a number of important considerations for federal contractors.  Focusing on federal contractors’ obligations and attendant risks when utilizing AI to assist in employment-related decisions, the AI Guide also provides recommendations for ensuring compliance with EEO requirements while harnessing the efficiencies of AI.

Over the past few years, the use of Artificial Intelligence (“AI”) has exploded across multiple industries and many financial services institutions have come to rely on AI—or claim to rely on AI—to generate, assist, and complete business objectives.  So, too, has the regulatory scrutiny around “AI washing,” or firms’ overstating or misrepresenting their use of AI to attract investors.  Similar to "greenwashing," where regulators have scrutinized public claims by companies that they are more environmentally friendly than they actually are, the concept of AI washing has come into sharp focus for the Securities and Exchange Commission (“SEC”), evidenced by multiple public warnings and two recent enforcement actions.

On April 11, 2024, the USPTO published its “Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States” in the Federal Register (the “Guidance”). As the title suggests, the document provides additional opinions and guidance from the USPTO on the use of AI tools for prosecuting patent and trademark applications before the USPTO.

Digital health companies, investors, and other healthcare organizations should follow policy developments with a strategic lens towards their market opportunities for key potential growth and risk mitigation.

On April 10, 2024, the U.S. House of Representatives, Judiciary Committee Subcommittee on Intellectual Property convened Part III to an ongoing discussion and exploration of artificial intelligence (AI) and intellectual property (IP) rights. The session, “Artificial Intelligence and Intellectual Property: Part III - IP Protection for AI-Assisted Inventions and Creative Works,” delved into the nuanced debate over what IP protections should exist for AI-generated or AI-assisted works.