Delaware Supreme Court Issues Policy on AI Use by Judges and Staff
Joe Cahill
The Delaware Supreme Court has adopted an interim policy providing guidance on the use of generative artificial intelligence by judicial officers and court personnel. The interim policy requires that judges and court staff receive proper training before utilizing generative AI tools and prohibits them from "delegating their decision-making function" to such technology. According to the Interim Policy, “ users should not use generative AI "without a working knowledge and understanding of the tools” and must be “trained in the technical capabilities and limitations of [generative AI] prior to use.” Additionally, any AI applications used for official duties require prior approval from the court's administrative arm to ensure they meet security and confidentiality standards. The policy also cautions against using non-approved AI programs that could potentially expose confidential information and emphasizes that users are ultimately responsible for the accuracy of the AI-generated work product.

"Like technologies that have come before, generative AI has the potential to be helpful and to provide efficiencies," said Supreme Court Justice and Delaware Commission on Law and Technology Co-Chair Karen Valihura. "But just as with earlier technologies, there are potential pitfalls and dangers associated with it and we believe this interim policy provides our judges and employees some needed and appropriate guardrails." 

This parallel adoption of AI by courts and attorneys signals a transformative period ahead, potentially reshaping how justice is administered.
 
Judicial Conference Explores New Reliability Standards for AI-Generated Evidence
Julie Tortora
Earlier this month, the Advisory Committee on Evidence Rules of the Judicial Conference, the policymaking body of the federal court system, agreed to develop rules governing reliability standards for AI-generated content, providing that such content should be required to meet the same evidentiary standards as those expected of expert witnesses. Although still in draft form, the two proposed rules could eventually be incorporated into the Federal Rules of Evidence.

According to Committee meeting notes, the first of the two rules would address potentially fabricated and altered evidence created by deepfakes. Under proposed Rule 901(c), if a party challenging the authenticity of computer-generated or other electronic evidence can demonstrate to the court that a jury could reasonably find that evidence has been altered or fabricated, in whole or in part, by AI, then the evidence is admissible only if the proponent of the evidence can demonstrate that it is more likely than not authentic.

The second of the two rules would regulate machine-generated evidence, providing that such content should be required to meet the same evidentiary standards as those expected of expert witnesses. Under proposed Rule 707, if machine output is directly offered as evidence, it will be subject to the reliability requirements of Rule 702, which provides a four-part test for determining witness reliability.

The proposed rules are expected to be presented at the Committee’s next meeting in May.
 
U.S. Copyright Office to Issue Report on Fair Use in AI Training
Coleman Strine
An upcoming report from the U.S. Copyright Office will address the controversial issue of fair use in connection with the training of AI models on copyrighted material. Shira Perlmutter, the Office’s director, noted that, of the 10,000 public comments submitted in response to a Request for Comments seeking input on copyright law and policy issues raised by AI, the majority focused on fair use. However, these comments varied on whether the current fair use doctrine supports or cuts against allowing AI models to be trained on copyrighted material. Perlmutter also mentioned that there are about three dozen pending court cases related to this issue, and she expects court decisions to emerge within the next year. While commenters generally urged the Copyright Office to take a stance on the impact of fair use on AI training, these decisions could supersede any action taken by the Office.

The Copyright Office’s report is the second part of a larger study on copyright law and policy issues raised by AI. The report was scheduled to be released by the end of 2024, but its publication has seen several delays. Part 1 of the study, which focuses on the issue of digital replicas, is available here. Stakeholders should be sure to stay tuned for any updates, as the Office’s position on this issue may have significant effects for owners and trainers of AI tools. 
 
Quick Links
For additional insights on AI, check out Baker Botts’ thought leadership in this area:

1. AI Counsel Code Podcast: Listen to "The Future of AI (Part 3)," the final episode of this three-part series, in which Maggie Welsh turns the mic over to Baker Botts Austin partner Mark Speegle and Dr. Pablo Rivas, a computer science professor at Baylor University and an expert on large language models, where they continue their engaging discussion on AI and the challenges it currently faces - specifically pertaining to copyright law.
2. California's AB 2013: Challenges and Opportunities in Generative AI Compliance: Parker Hancock and Travis Wofford analyze the challenges and strategic opportunities presented by California's new “Generative Artificial Intelligence Training Data Transparency Act.”
3. Trade Secret Litigation: How Will AI Innovations Likely Be Litigated? Richard Harper breaks down how traditional trade secret laws could apply to rapidly advancing AI tech.

For additional information on our Artificial Intelligence practice, experience and team, please visit our page here. 

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