Kraizberg on Non-fungible Tokens: A Bubble or the End of an Era of Intellectual Property Rights

Elli Kraizberg (Bar-Ilan University) has posted “Non-fungible Tokens: A Bubble or the End of an Era of Intellectual Property Rights” on SSRN. Here is the abstract:

The viability of the exponentially growing non-fungible token (NFT) markets is evaluated by identifying potential value-generating mechanisms that may be rationalized. NFTs are claimed to securitize “ownership rights short of use”. This paper evaluates the likelihood that NFTs will replace existing mechanisms that protect producers’ rightful claim to use their assets, or replace the need to apply the legal code that governs intellectual property rights (IPR). A condition for this shift is derived for a category of assets whose use or consumption does not reduce their scarce supply.

Kuner on The Path to Recognition of Data Protection in India: The Role of the GDPR and International Standards

Christopher Kuner (Vrije Universiteit Brussel – LSTS; Maastricht University – Faculty of Law; Centre for European Legal Studies) has posted “The Path to Recognition of Data Protection in India: The Role of the GDPR and International Standards” (National Law Review of India, vol. 33 no. 1 (2021)) on SSRN. Here is the abstract:

By providing rules of the road for data processing, data protection legislation has become a key enabler of the information society. The European Union’s General Data Protection Regulation (GDPR) has been highly influential around the world, and the recent Schrems II judgment of the Court of Justice of the EU, which strengthened restrictions on international data transfers under EU law, has important implications for India as it prepares to adopt data protection legislation. While the Puttaswamy judgment that recognised privacy as a fundamental right represents a great stride forward for privacy protection in India, legislation is necessary to establish the right to data protection in the Indian legal system. The proposed Personal Data Protection Bill does not provide a sufficiently high standard of data protection, particularly in light of surveillance initiatives and legal mandates to collect data under Indian law. India should view the strengthening of its legal framework for data protection not just as a way to receive an EU adequacy decision, but also as having broad societal benefits. In adopting data protection legislation India should align itself both with the GDPR and also more broadly with data protection standards of important international bodies, such as those of the Council of Europe and the OECD.

Marlan on The Dystopian Right of Publicity

Dustin Marlan (University of Massachusetts School of Law) has posted “The Dystopian Right of Publicity” (Berkeley Technology Law Journal, Vol. 37 2022) on SSRN. Here is the abstract:

Our society frequently describes privacy problems with the dystopian metaphor of George Orwell’s 1984. Understood through the Orwellian metaphor—and particularly the “Big Brother is watching you” maxim—privacy rights are forcefully invaded by the government’s constant surveillance and disclosures of personal information. Yet, privacy’s coined opposite, the right of publicity—“the right of every human being to control the commercial use of his or her identity”—still lacks an appropriate metaphor, making it difficult to conceptualize and thus to regulate effectively.

This Article suggests that the problems with a commercially transferable right of publicity can be usefully analogized to another chilling dystopia, Aldous Huxley’s Brave New World. Huxley wrote Brave New World as an expression of the anxiety of losing one’s individual identity in a technology-driven future. In the novel, Huxley envisioned a utilitarian society controlled through technological manipulation, conspicuous consumption, social conditioning, and entertainment addiction. In contrast to Big Brother’s forceful coercion, pacified citizens in the “World State” society willingly participate in their own servitude.

Commentators often focus on the fact that litigated publicity cases tend to overprotect celebrities’ fame to the detriment of creators’ First Amendment rights. The vast majority of publicity rights, however, actually belong to ordinary citizens. The Huxleyan metaphor’s depiction of technological manipulation, social conditioning, and identity loss thus reveals the constant, but constantly overlooked, publicity problem this Article labels the “pleasurable servitude.” In effect, by consenting to terms of service on social media, ordinary citizens voluntarily license rights in their identities to internet platforms in exchange for access to the pleasures of digital realities. Through this unregulated mass transfer of publicity rights, social networks strip away their users’ identities and sell them to advertisers as commodities. This Article claims that the pleasurable servitude is a form of surveillance capitalism deserving of regulation by means of “publicity policies” that would function analogously to privacy policies.

Chesterman on The Robot Century

Simon Chesterman (National University of Singapore – Faculty of Law) has posted “The Robot Century” on SSRN. Here is the abstract:

The word ‘robot’ entered the modern lexicon a hundred years ago with the première at Prague’s National Theatre of Karel Čapek’s play R.U.R. in 1921. Set on an island ‘somewhere on our planet’, Rossum’s Universal Robots recounts the creation of roboti. Not so much mechanical creatures as stripped down versions of humans, they were biological entities created to be strong and intelligent, but without souls. Though dated in many ways — the limited humour derives from six men on the island vying for the hand of the only woman — the play was prescient in its vision of a world in which automatons are entrusted with serving ever more of humanity’s needs and, eventually, fighting its wars. Reviews of the New York production called it a ‘brilliant satire on our mechanized civilization; the grimmest yet subtlest arraignment of this strange, mad thing we call the industrial society of today.’ A century later, debates over the place of robots in society still echo themes in the play: how to take advantage of the benefits of technology without unacceptable risk; what entitlements are owed to entities that at least mimic and perhaps embody human qualities; what place is left for humanity if and when we are surpassed by our creations.

Wang on China Meets Digital Currency: E-CNY and Its Implications for Businesses

Heng Wang (UNSW – Faculty of Law) has posted “China Meets Digital Currency: E-CNY and Its Implications for Businesses” (The Law Gazette, November 2021) on SSRN. Here is the abstract:

China is likely to be the first major economy to issue central bank digital currency (CBDC). China’s CBDC, e-CNY, may lead to a new ecosystem that would profoundly affect business, product offerings and business practice. E-CNY is likely to affect both local and international businesses, particularly those with a presence in China or those who commonly transact with Chinese actors. There is also the possibility of e-CNY use outside of China. If China’s CBDC practice and standards affect international practice (such as through standard making), e-CNY has the potential to affect the broader businesses community. This paper discusses the following crucial questions: how to understand e-CNY? What does e-CNY mean for local and international businesses? Businesses need to adequately prepare for a new business landscape with e-CNY that is not only a currency but also generates large amounts of data.

Stuurman & Lachaud on Regulating AI: A Label To Complete the Proposed Act on Artificial Intelligence

Kees Stuurman (Tilburg Law School) and Eric Lachaud have posted “Regulating AI. A Label To Complete the Proposed Act on Artificial Intelligence” on SSRN. Here is the abstract:

AI regulation is emerging in the EU. The European authorities, NGOs and academics have already issued a series of proposals to accommodate the ‘development and uptake of AI’ with an ‘appropriate ethical and legal framework’ and promote what the European Commission has called an ‘ecosystem of trust’. In the spring of 2020, the European Commission submitted a legislative proposal for public consultation including four options ranging from “soft law only” to a broad scope of mandatory requirements and combinations thereof, for addressing the risks linked to the development and use of certain AI applications. One year later, the Commission unveiled on 21 April 2021 the EU Act on Artificial Intelligence. The proposal primarily focuses on regulating ’high-risk’ systems through mandatory requirements and prohibition measures. This approach leaves a wide range of AI-systems, with potentially serious impact on fundamental rights, merely unregulated as regards specifically AI related risks. This paper explores the boundaries of the impact of the Act for primarily non-high-risk systems and discuss the options for introducing a voluntary labeling scheme for enhancing protection against the risks of medium and low risk AI systems.

Atik on Quantum Computing and the Legal Imagination

Jeffery Atik (Loyola Law School Los Angeles) has posted “Quantum Computing and the Legal Imagination” (18 SciTech Lawyer 12 (2022)) on SSRN. Here is the abstract:

Powerful and cost-effective quantum computers will soon arrive. The existence of quantum computers – and their special capacities – will stimulate a search for legal applications. Quantum computing – when deployed together with artificial intelligence – will
(1) enable new legal tools,
(2) permit modeling of complex social and economic relations that can be used to inform legal determinations,
(3) raise new legal, ethical and distributional challenges and
(4) stimulate the legal imagination to reach new – and initially strange – insights and understandings.
The implementation of quantum computing in law will depend on the location of quantum advantage, where quantum computers outperform conventional computers. Mathematicians can already teach us about the characteristics of certain problem types and suggest which of these will be favorable ground for quantum advantage. Lawyer-engineers will need to match the identified mathematical characteristics of decisions amenable to quantum advantage to real-world legal concerns. Quantum computing will drive further developments in operationalizing law and facilitating legal prediction. Many of these changes will take place ‘under the hood’ and will not demand a thorough understanding of quantum theory, but the practitioner will experience a different feel from the technology. Antitrust and bank regulation are examples of fields where quantum computing can be expected to have an important impact. Quantum computing, like the digital technologies that arose during the past 30 years, might have the unfortunate effect of exacerbating wealth and power differentials. That said, quantum computing will have a stimulating effect on our minds, including our legal imagination. It will lead us to look for new approaches, new ways of thinking about problems and their solutions, and new roles for law.

Recommended.

Joh on Ethical AI in American Policing

Elizabeth E. Joh (UC Davis School of Law) has posted “Ethical AI in American Policing” (Notre Dame J. Emerging Tech. 2022) on SSRN. Here is the abstract:

We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating broad principles about the responsible use of AI systems are less helpful than ones that 1) take into account the specific context of policing, and 2) consider the American experience of policing in particular. There is an emerging consensus about what ethical and responsible values should be part of AI systems. This essay considers what kind of ethical considerations can guide the use of AI systems by American police.

Lin on How to Save Face & the Fourth Amendment: Developing an Algorithmic Accountability Industry for Facial Recognition Technology in Law Enforcement

Patrick K. Lin (Brooklyn Law School) has posted “How to Save Face & the Fourth Amendment: Developing an Algorithmic Accountability Industry for Facial Recognition Technology in Law Enforcement” (33 Alb. L.J. Sci. & Tech. 2023 Forthcoming) on SSRN. Here is the abstract:

For more than two decades, police in the United States have used facial recognition to surveil civilians. Local police departments deploy facial recognition technology to identify protestors’ faces while federal law enforcement agencies quietly amass driver’s license and social media photos to build databases containing billions of faces. Yet, despite the widespread use of facial recognition in law enforcement, there are neither federal laws governing the deployment of this technology nor regulations setting standards with respect to its development. To make matters worse, the Fourth Amendment—intended to limit police power and enacted to protect against unreasonable searches—has struggled to rein in new surveillance technologies since its inception.

This Article examines the Supreme Court’s Fourth Amendment jurisprudence leading up to Carpenter v. United States and suggests that the Court is reinterpreting the amendment for the digital age. Still, the too-slow expansion of privacy protections raises challenging questions about racial bias, the legitimacy of police power, and ethical issues in artificial intelligence design. This Article proposes the development of an algorithmic auditing and accountability market that not only sets standards for AI development and limitations on governmental use of facial recognition but encourages collaboration between public interest technologists and regulators. Beyond the necessary changes to the technological and legal landscape, the current system of policing must also be reevaluated if hard-won civil liberties are to endure.

Soled & Thomas on AI, Taxation, and Valuation

Jay A. Soled (Rutgers University) and Kathleen DeLaney Thomas (UNC School of Law) have posted “AI, Taxation, and Valuation” (Iowa Law Review, Forthcoming 2023) on SSRN. Here is the abstract:

Virtually every tax system relies upon accurate asset valuations. In some cases, this is an easy identification exercise, and the exact fair market value of an asset is readily ascertainable. Often, however, the reverse is true, and ascertaining an asset’s fair market value yields, at best, a numerical range of possible outcomes. Taxpayers commonly capitalize upon this uncertainty in their reporting practices, such that tax compliance lags and the IRS has a difficult time fulfilling its oversight responsibilities. As a by-product of this dynamic, the Treasury suffers.

This Article explores how tax systems, utilizing artificial intelligence, can strategically address asset-valuation concerns, offering practical reforms that would help obviate this nettlesome and age-old problem. Indeed, if the IRS and Congress were to take advantage of this new and innovative technological approach, doing so would bode well for more accurate asset valuations and thereby foster greater tax compliance. Put somewhat differently, in the Information Era in which we exist, it is simply no longer true that accurate asset valuations are unattainable.