On December 19, 2023, AI research company Anthropic announced that it had updated and made publicly available its Commercial Terms of Service (effective Jan 1, 2024) to, among other things, indemnify its enterprise Claude API customers from copyright infringement claims made against them for “their authorized use of our services
- Flight and travel data has always been valuable for data aggregators and online travel services and has prompted litigation over the years.
- Latest suit from Air Canada against a rewards travel search site raises some interesting liability issues under the CFAA.
- The implications of this case, if the plaintiffs are successful, could impact the legal analysis of web scraping in a variety of circumstances, including for the training of generative AI models.
In a recent post, we recounted the myriad of issues raised by recently-filed data scraping suits involving job listings, company reviews and employment data. Soon after, another interesting scraping suit was filed, this time by a major airline against an award travel search site that aggregates fare and award travel data. Air Canada alleges that Defendant Localhost LLC (“Localhost” or “Defendant”), operator of the Seats.aero website, unlawfully bypassed technical measures and violated Air Canada’s website terms when it scraped “vast amounts” of flight data without permission and purportedly caused slowdowns to Air Canada’s site and other problems. (Air Canada v. Localhost LLC, No. 23-01177 (D. Del. Filed Oct. 19, 2023)).
The complaint alleges that Localhost harvested data from Air Canada’s site and systems to populate the seats.aero site, which claims to be “the fastest search engine for award travel.”
It also alleged that in addition to scraping the Air Canada website, Localhost engaged in “API scraping” by impersonating authorized requests to Air Canada’s application programming interface.
In a previous post, we highlighted three key items to look out for when assessing the terms and conditions of generative artificial intelligence (“GAI”) tools: training rights, use restrictions and responsibility for outputs. With respect to responsibility for outputs specifically, we detailed Microsoft’s shift away, through its Copilot Copyright Commitment (discussed in greater detail below), from the blanket disclaimer of all responsibility for GAI tools’ outputs that we initially saw from most GAI providers.
In the latest expansion of intellectual property protection offered by a major GAI provider, OpenAI’s CEO Sam Altman announced to OpenAI “DevDay” conference attendees that “we can defend our customers and pay the costs incurred if you face legal claims around copyright infringement, and this applies both to ChatGPT Enterprise and the API.”
The Federal Trade Commission (FTC) has long expressed a concern about the potential misuse of location data. For example, in a 2022 blog post, “Location, health, and other sensitive information: FTC committed to fully enforcing the law against illegal use and sharing of highly sensitive data,” the agency termed the entire location data ecosystem “opaque” and has investigated the practices and brought enforcement actions against mobile app operators and data brokers with respect to sensitive data.
One such FTC enforcement began with an August 2022 complaint against Kochava, Inc. (“Kochava”), a digital marketing and analytics firm, seeking an order halting Kochava’s alleged acquisition and downstream sale of “massive amounts” of precise geolocation data collected from consumers’ mobile devices. In that complaint, the FTC alleged that Kochava, in its role as a data broker, collects a wealth of information about consumers and their mobile devices by, among other means, purchasing data from outside entities to sell to its own customers. Among other things, the FTC alleged that the location data provided by Kochava to its customers was not anonymized and that it was possible, using third party services, to use the geolocation data combined with other information to identify a mobile device user or owner.
In May 2023, an Idaho district court granted Kochava’s motion to dismiss the FTC’s complaint, with leave to amend. Subsequently, the FTC filed an amended complaint, and Kochava requested that the court keep the amended complaint under seal, which it did until it could rule on the merits of the parties’ arguments.
On November 3, 2023, the court granted the FTC’s motion to unseal the amended complaint, finding no “compelling reason” to keep the amended complaint under seal and rejecting Kochava’s arguments that the amended complaint’s allegations were “knowingly false” or “misleading.” (FTC v. Kochava Inc., No. 22-00377 (D. Idaho Nov. 3, 2023)). As a result, the FTC’s amended complaint has been unsealed to the public.
In the first half of 2023, a deluge of new generative artificial intelligence (“GAI”) tools hit the market, with companies ranging from startups to tech giants rolling out new products. In the large language model space alone, we have seen OpenAI’s GPT-4, Meta’s LLaMA, Anthropic’s Claude 2, Microsoft’s Bing AI, and others.
A proliferation of tools has meant a proliferation of terms and conditions. Many popular tools have both a free version and a paid version, which each subject to different terms, and several providers also have ‘enterprise’ grade tools available to the largest customers. For businesses looking to trial GAI, the number of options can be daunting.
This article sets out three key items to check when evaluating a GAI tool’s terms and conditions. Although determining which tool is right for a particular business is a complex question that requires an analysis of terms and conditions in their entirety – not to mention nonlegal considerations like pricing and technical capabilities – the below items can provide prospective customers with a starting place, as well as bellwether to help spot terms and conditions that are more or less aggressive than the market standard.
On October 30, 2023, President Biden issued an “Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence” (Fact Sheet, here) designed to spur new AI safety and security standards, encourage the development of privacy-preserving technologies in conjunction with AI training, address certain instances of algorithmic discrimination, advance the responsible use of AI in healthcare, study the impacts of AI on the labor market, support AI research and a competitive environment in the industry, and issue guidance on the use of AI by federal agencies. This latest move builds on the White House’s previously-released “Blueprint for an AI Bill of Rights” and its announcement this past summer that it had secured voluntary commitments from major AI companies focusing on what the White House termed as “three principles that must be fundamental to the future of AI – safety, security, and trust.”
In recent years there has been a great demand for information about job listings, company reviews and employment data. Recruiters, consultants, analysts and employment-related service providers, amongst others, are aggressively scraping job-posting sites to extract that type of information. Recall, for example, the long-running, landmark hiQ scraping litigation over the scraping of public LinkedIn data.
The two most recent disputes regarding scraping of employment and job-related data were brought by Jobiak LLC (“Jobiak”), an AI-based recruitment platform. Jobiak filed two nearly-identical scraping suits in California district court alleging that competitors unlawfully scraped its database and copied its optimized job listings without authorization. (Jobiak LLC v. Botmakers LLC, No. 23-08604 (C.D. Cal. Filed Oct. 12, 2023); Jobiak LLC v. Aspen Technology Labs, Inc., No. 23-08728 (C.D. Cal. Filed Oct. 17, 2023)).
In the rapidly-evolving AI space, the last few days of this week saw significant AI developments occur perhaps even faster than usual. For example, seven AI companies agreed to voluntary guidelines covering AI safety and security and ChatGPT rolled out a custom preferences tool to streamline usage. In addition, as a related point, Microsoft issued a transparency note for the Azure OpenAI service. And on top of that, this week saw announcements of a number of generative AI commercial ventures which are beyond the scope of this particular post.
On July 12, 2023, Nikhil Rathi, the CEO of the UK’s Financial Conduct Authority (“FCA”) delivered a speech on the FCA’s regulatory approach to Big Tech and Artificial Intelligence (“AI”). Below are some of the key points discussed at the event:
In April, we wrote about how OpenAI had eased the procedure by which ChatGPT users can opt out of their inputs being used for model training purposes (click here for that post). While neither web scraping nor the collection of user data to improve services are new concepts, AI did…