Camilla Alexandra Hrdy (Rutgers) has posted “Trade Secrecy Meets Generative AI” (“Disrupting AI” Symposium Issue of the Chicago Kent Law Review, Forthcoming 2025) on SSRN. Here is the abstract:

Generative AI models like ChatGPT raise novel issues for trade secret law. This Essay identifies three major developments and explains how the law will likely respond based on analogies to past technologies and past case law. 

First, widespread use of generative AI poses new risks to companies’ existing trade secrets. For example, trade secret owners’ own employees might inadvertently share trade secrets with a generative AI tool like ChatGPT, which might disseminate this information to competitors or third parties. I argue this new disclosure risk, at the margins, raises the bar for keeping trade secrets. But companies will likely adapt their risk management strategies, as they did in the face of prior information-distribution technologies, such as the internet. 

Second, generative AI will add to the universe of information that can be protected under trade secret law. Trade secret law will be available even for information that is not protected by patent and copyright law. Patent and copyright law have human creator requirements. But trade secret law has no human creator requirement. Therefore, purely AI-generated outputs that do not qualify for patent or copyright protection can be protected as trade secrets. 

Third, companies that develop valuable new generative AI tools will be able to rely on trade secrecy to protect that technology, even when other forms of IP are unavailing. Trade secret law, especially when supplemented by restrictive contractual “terms of use,” can protect various types of information related to generative AI, including information that does not qualify for copyright or patent protection. 

Even though generative AI models will initially benefit from a combination of trade secrecy and contract protection, the models are highly vulnerable to “reverse engineering.” For example, OpenAI, the maker of ChatGPT, recently accused the makers of the new AI model, “DeepSeek,” of engaging in “knowledge distillation” to develop their competing system—using the larger, more complex, and more expensive ChatGPT model to build a smaller, simpler, and cheaper one. Trade secret law, although it generally permits reverse engineering, may or may not condone this conduct. Courts might construe these activities as a violation of contract law, since knowledge distillation seems to violate OpenAI’s contractual terms of use, but courts may also view these activities as a violation of federal and state trade secret law. In software cases, courts have held that using cutting-edge techniques like data scraping to access trade secrets constitutes  acquisition by “improper means,” and thus misappropriation, especially when contractual terms of use explicitly prohibit this conduct. The makers of DeepSeek claim they independently developed their model, but if this is not true, trade secret law could provide an avenue for legal liability.

Jane C. Ginsburg (Columbia U Law) and Graeme W. Austin (Victoria U Wellington) have posted “Regulating Deepfakes at Home and Abroad” on SSRN. Here is the abstract:

AI technology enables the creation of “deepfakes”—known in legal documents as “digital replicas”—capable of simulating the visual and vocal appearance of real people, living or dead. AI programs can also generate musical compositions in the style of well-known composers or performers, as well as video sequences. What may be good fun in private may become pernicious, offensive, and even dangerous, if widely disseminated over social media or through commercial channels. But, at least in the U.S., legal protections for performers and ordinary individuals against digital replicas, are at best, scanty. The first part of this Essay reviews existing protections against the creation and dissemination of deep fakes under U.S. copyright and trademarks laws as well as representative State right of publicity laws. Our brief survey supports the conclusion of the U.S. Copyright Office that “new federal legislation is urgently needed” because “existing laws fail to provide fully adequate protection.” These failures appear plainer still once consideration extends to the capacity of these doctrines to reach foreign violations. The second part of this Essay’s analysis will show how the currently pending U.S. legislation may, and may not, provide performers and ordinary individuals with enforceable rights against the use of their voices and visual likenesses in digital replicas. Given the few material barriers to cross-border dissemination of deep fakes, any evaluation of the strength of the protections afforded by a new U.S. intellectual property right should consider its international scope, particularly in light of recent Supreme Court caselaw restricting the territorial reach of U.S. intellectual property protections.