I woke from a vivid morning dream recently. In it, my husband and I were experimenting with generative AI (GenAI). I had asked it to create birthday greetings. With every iteration, it spit out a physical birthday card. Meanwhile, my husband’s request was producing modernist floor-to-ceiling curtains. Within seconds, several panels, apparently hung by the AI, created a fabric wall of abstract blue, green, and gold in the room.
As I woke, the thought occurred: What if GenAI could be used to create physical objects, not just words, images, or computer code on screens? How would that work?
It’s already being used to discover and produce anti-aging drugs. (1) With a 3-D printer and the appropriate raw materials, it doesn’t seem to be a stretch for GenAI to manufacture things.
But what if GenAI could figure out how to make objects from thin air? Heaven help us! Like Mickey Mouse in The Sorcerer’s Apprentice, we are already drowning in stuff, as can be seen by the volume of items in thrift stores, antique malls, inventory liquidation companies, landfills, the clothing pile in Chile’s Atacama Desert that is so big it can be seen from space, and the Great Pacific Garbage Patch filled with plastic in the Pacific Ocean.
But what if GenAI could help us solve this overabundance of material goods?
Take that pile of discarded fast fashion in the Atacama Desert, for example. As a fiber artist, it’s been my observation that ready-to-wear fashion doesn’t properly fit most people, which is one reason it’s so easily discarded. What if GenAI could create bespoke clothing based on each person’s measurements? How much clothing waste could it prevent? Further, if it used the principles of zero-waste pattern design, how much fabric could it save?
What if GenAI could help us figure out how to efficiently dismantle the constituent parts of clothing, reducing it back to raw materials that can be safely returned to the earth? How might that work? What are the potential negative outcomes of using GenAI in this way?
And what does all of this have to do with the legal field?
There is always a legal impact with technology and its effects.
As technology advances, the intellectual property behind it needs to be protected. If GenAI creates an item or process with little input from a human, can it be patented? The U.S. Patent and Trademark Office has issued guidance on this that leaves gray areas. (2) If GenAI has created something without human input, it can’t be patented, but if a person used GenAI to invent something, it may be patentable depending on how much human input there was. Clear as mud, right?
The same goes for copyright. A U.S. District Court judge has already ruled that a work of art created by AI without human input can’t be copyrighted. (3) The U.S. Copyright Office, in its March 2023 statement of policy on registering works created by a human with the use of GenAI, indicates that, like patents, whether copyright is granted depends on the nature of the human’s involvement, which will be determined on a case-by-case basis. (4)
Aside from intellectual property issues stemming from creating with GenAI, the very foundations of it are facing legal issues. Authors and the New York Times have been litigating the use of their writings to train the large language models used by GenAI companies. Bringing us back to the hypothetical scenario of GenAI creating physical things, what sort of litigation might we see if AI creates objects based on existing patents?
If GenAI results in negative outcomes (something we are already seeing with deepfakes and hallucinations), new laws and regulations will be needed. If AI could eventually disassemble objects into their constituent elements, attorneys versed in environmental law would need to weigh in on where those elements could be kept or dispersed.
Licensing agreements and other contracts will also be necessary in our scenario of AI manufacturing goods. Attorneys who specialize in business law will be needed to represent new companies arising from the further development of GenAI and other tech.
If I am dreaming of GenAI producing physical items, it’s a sure bet this idea has already occurred to an enterprising AI researcher. Whether this specific scenario comes to fruition, merely engaging in futures thinking can help attorneys adapt to tech advancements by learning to anticipate possible developments.
It’s not difficult to get started in thinking like a futurist. Notice how many times I used the phrase “What if?” when thinking about AI creating physical objects? Futures thinking starts with “What if?”, followed closely by, “How would that work?”.
Once you’ve thought of a scenario using these questions, you consider the potential positive and negative impacts should your scenario come to pass. Then, you bring your expertise as an attorney to the scenario and consider the possible ramifications to your practice area. (Whoever invents the components of GenAI that allows it to make physical stuff is going to need a good estate plan, for example.)
If you need some inspiration to get started, read, watch, or listen to science fiction, where entire worlds are conjured from “What if?”.
Other sources to learn more about futures thinking include “Think Like a Futurist” by Cecily Sommers (https://www.cecilysommers.com/), “Imaginable” by Jane McGonigal (https://janemcgonigal.com/), and the Institute for the Future (https://www.iftf.org/).
Generative AI is shaking up the legal field. Rather than being rattled by this massive change in tech, use it to spur futures thinking so that you are ready to tackle the legal opportunities that are sure to come.
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Sources
1 – Insilico Medicine, Artificial Intelligence for Every Step of Pharmaceutical Research and Development, https://insilico.com/, accessed 3/28/2024.
2 - Inventorship Guidance for AI-Assisted Inventions, U.S. Patent and Trademark Office, 2/13/2024, https://www.federalregister.gov/documents/2024/02/13/2024-02623/inventorship-guidance-for-ai-assisted-inventions, accessed 3/28/2024.
3 – Brittain, Blake, AI-generated art cannot receive copyrights, US court says, Reuters, 8/21/2023, https://www.reuters.com/legal/ai-generated-art-cannot-receive-copyrights-us-court-says-2023-08-21/, accessed 3/28/2024.
4 - Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, U.S. Copyright Office, Library of Congress, 3/16/2023, https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence, accessed 3/28/2024.