Editor
Co-Chair of the ABA AI and Blockchain Subcommittee |
Assistant Editor
Adam Aft Partner, IPTech |
Contributors
Bryce Bailey, Cynthia Cole, Loic Coutelier, Alex Crowley, Lothar Determann, Rachel Ehlers, Jacqueline Gerson, Sinead Kelly, Mackenzie Martin, Avi Toltzis, and Jennifer Trock
§ 8.1. Introduction
This year’s Chapter comes at the conclusion of perhaps the busiest 12 months in the history of both AI and blockchain—two innovative technologies that continue to proliferate across industries and use cases. The legal issues presented by GenAI in particular, coupled with renewed domestic regulatory and enforcement interest in both of these fields, has resulted in a year filled with big court cases, legislative proposals and complex issues for business law practitioners and judges.
The goal of this Chapter has never been to report on any case that merely references or mentions “AI” or “blockchain.” Rather, our goal is to produce a practical guide for business law practitioners who seek to enhance their understanding of these areas and to identify clear trends that are relevant for lawyers and business court judges. This year, in the (Gen) AI arena, the focus continues to be on IP copyright battles centered on the tension between allegations of algorithmic “infringement” and defenses of “fair use.” The key players at the forefront of AI development will also continue to shape the area of law both in their technological developments as well as potential disputes (for example, Elon Musk’s recent complaint against OpenAI in California Court). Additional areas of litigation and regulator focus with regard to AI algorithms and their use center on bias, transparency, and personal privacy. Finally, as the well-publicized Aviana Airlines and Michel (criminally convicted former member of the popular group The Fugees) cases make clear, judges and State Bar regulators are placing increased focus on devising and promulgating rules for lawyers which govern the ethical use of GenAI in all aspects of practicing law.
In the blockchain space, the government continues to push its view that all crypto other than Bitcoin is a security, and to pursue enforcement actions against retail exchanges and issuers. The spectacular collapse of Sam Bankman-Fried and FTX, coupled with the recent guilty plea to a federal charge by Changpeng Zhao (“CZ”), the founder of Binance, make clear that the decentralized promise of what blockchain can offer has, for the last several years, been waylaid by highly centralized projects that are susceptible to familiar economic shenanigans long present on Wall Street and in traditional finance. We will have to wait a bit longer, likely into 2025 and beyond, for the United States Supreme Court to decide if and to what extent securities laws apply to this technology, and whether or not various actions by agencies like the Securities and Exchange Commission are proper or have exceeded lawful bounds. However, when it comes to crypto, government agencies and the plaintiff’s bar will continue to aim their sights at those viewed as defrauding retail investors.
I am often asked to present CLEs that …
