Author: Washington Journal of Law, Technology & Arts

AI Doctors: Muddying The Waters of Patient Privacy?

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By: Nirmalya Chaudhuri

Introduction

In November 2024, a study reported that ChatGPT acting on its own performed better at diagnosing diseases than trained doctors in the US, with a reported 90% success rate. While singing paeans of Artificial Intelligence (AI) in almost every field of human activity has now become par for the course, the possibility of the rise of “AI doctors” raises important questions relating to patient privacy and, in particular, the larger doctor-patient relationship.

Crisis of Confidentiality: From Ethics to Law

The delicate nature of the doctor-patient relationship was beautifully expounded in the eighteenth-century writings of John Gregory and Thomas Percival, two pioneering figures in the field of medical ethics. As Gregory and Percival noted, doctors inevitably gain access to the private lives of their patients, and this naturally requires them to exercise great discretion in dealing with the personal information entrusted to them. In certain fields, such as psychotherapy, this is all the more important, which has led to a strong movement  (and its acceptance by some courts in the US) to carve out a“psychotherapist-patient privilege” exception to the Federal Rules of Evidence governing confidential communications.

Today, the narrative on this issue may well shift from a purely ethical viewpoint into a more legalistic perspective on data protection and privacy. It is, therefore, not surprising that the General Data Protection Regulation (GDPR) in the European Union, classifies “health data” as one of the categories of “sensitive personal data”, to which heightened standards and safeguards apply. When patients directly interact with an “AI doctor,” sensitive personal data relating to not only one’s health but also one’s private life, would be disclosed. 

In the absence of strong legal regulations for processing such data, it is possible that patient data could be used for purposes other than providing patient care. The concerns are exacerbated by the fact that generative AI may “learn” or “train” itself using such sensitive patient data, leading to outcomes that are both inconceivable and perhaps undesirable for the patient. While a possible counter-argument would be that explicit consent of the patient would be a prerequisite before any health data is divulged to the AI doctor, there is a wealth of secondary literature that questions whether the patients truly know what they are consenting to instead of treating consent like a routine, box-ticking exercise. 

Judicial opinion

Case law on this topic is non-existent, presumably because the issue of “AI doctors” is novel. However, in the past, courts have sought to tread cautiously as far as divulging patient records to third parties is concerned. The Ohio Supreme Court, in Biddle v. Warren General Hospital, went so far as to suggest that unauthorized disclosure of patient records to a third party amounted to an independent tort by itself, irrespective of how that information was utilized by the third party. It is, of course, true that the court was dealing with a case where the patients had not consented to disclosure of their data. In the UK case of Source Informatics, the Court of Appeal allowed the passing of patient records to a third party. However, in that case, it is worth noting that the patient data was anonymized before disclosure, thus making the argument relating to data protection that much weaker. 

These cases would prove to be of limited application if and when the debate on AI doctors reaches the stage of litigation. In these circumstances, the courts would then be deciding whether patients can consent to the disclosure of non-anonymized sensitive personal data to an AI entity and the extent to which the AI tool can use that information. 

Conclusion

In the absence of a federal data protection law in the US, there is a possibility that legal regulation of the wide-ranging use of AI doctors would be State-specific and fragmented. Even more importantly, a lack of legal regulation would raise serious concerns about whether AI doctors are indeed “practicing” medicine, which would directly determine whether they will be bound by professional obligations that are ordinarily applicable to doctors, such as the preservation of confidentiality of patient data. A possible solution to this problem could lie in a conclusive determination of the legal status of AI doctors, and the techno-legal accountability standards like purpose limitation and data minimization that they would be subject to. While AI can potentially lead to great benefits in medical science, one must ensure that confidentiality, privacy, and protection of personal data are not allowed to be sacrificed at the altar of convenience and diagnostic efficiency.

Pharma-Pirates: How Patent Law Enables the Theft of Indigenous Knowledge

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By: Alex Okun

Health and wellness are a key driver of consumer spending in the United States (US). The US pharmaceutical market is expected to exceed $1 trillion by 2030, and the value of its “wellness” industry (which includes everything from fitness equipment to psychotherapy) has skyrocketed to nearly $1.8 trillion. As life expectancy in America has remained relatively low and as Americans have become increasingly reluctant to seek synthetic remedies, market leaders have seized upon the trend toward natural health treatments. However, many companies have attempted to patent traditional medicines as if they were cutting-edge drugs, usually at the expense of the indigenous peoples who discovered them.

Patents

In the US, the owner of a utility patent has the right to prohibit anyone from selling their invention for 20 years from the date the patent is filed. To obtain patent protection, the invention must be “novel” and advance beyond existing technology in a way that would not be obvious to others in the industry. Patent examiners usually check global patent databases and trade publications to determine the state of existing technology (or “prior art”), and then assess the “obviousness” of the claimed invention in context. Even if granted, however, a patent is vulnerable to legal challenge if a third party disputes either the novelty or the obviousness of the invention. If a plaintiff can establish that the patented invention was either already in use or was merely an obvious advance over existing methods, the patent will be revoked. 

Biopiracy

“Biopiracy” is defined as patenting an indigenous group’s traditional knowledge or genetic resources for commercial gain. Perhaps the most infamous case was in 1995 when two US researchers patented the use of turmeric as an antimicrobial treatment for open wounds. They were granted the patent, but a group of Indian scientists sued to have it canceled because turmeric has been used in medicine for thousands of years. The patent was successfully canceled, but international biopiracy threatens traditional knowledge in medicine, foods, and industrial materials. Attempts at fighting back have generally been successful only in the most egregious instances, or when national governments have intervened on the people’s behalf in US courts.

Soon after the revocation of the turmeric patent, the Indian government took proactive measures by assembling a database of traditional medicine texts and translating them into English. This was consequential particularly for US law because evidence proving that an invention was used before being patented (an essential step to cancel a patent) must be available in English. When an invention has already been patented abroad this process is relatively simple because the US is obligated by treaty to recognize patents issued in most other countries. The US has not, however, ratified the treaties requiring the recognition of foreign discoveries that were never patented. As a result, US law only recognizes evidence of foreign “public use” of an invention if provided in the 9 months following a patent’s issuance. This places a significant burden on remedies and inventions based on traditional knowledge, which is often codified in oral traditions or ancient texts without readily available translations.

Global Guardrails

The Convention on Biological Diversity (“CBD”), which went into effect in 1993, was the first legally binding treaty designed to “conserve biological diversity, to sustainably use its components and to share equitably the benefits arising from the use of genetic resources.” Although the treaty recognized the rights of indigenous people to their knowledge, a far more significant advance toward effective legal protections came from the Nagoya Protocol in 2014. The Nagoya Protocol was intended to “ensure that traditional knowledge associated with genetic resources” is accessed only with the informed consent of the indigenous community from which those resources originated. It also created a framework for a “benefit-sharing mechanism” that would remunerate indigenous communities for the commercial gains resulting from the use of their traditional knowledge. The Access and Benefit-Sharing Clearing House provides information on the laws, procedures, and model contracts for benefit-sharing agreements for all of the Protocol’s member states. 142 nations have now ratified the CBD and Nagoya Protocol, including most of the European Union. However, the United States has neither joined the Convention nor participated in the benefit-sharing that Nagoya was intended to facilitate.

A key gap in the Nagoya Protocol’s provisions was that it did not address the issuance of patents. As a result, patent applicants are not obligated under the treaty to disclose whether traditional knowledge went into their inventions. However, 30 countries came to a solution in May 2024 with the Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (“GRATK”). Ratifying states must require patent applicants to disclose any source(s) of traditional knowledge underlying their claimed inventions, and the countries or indigenous groups from which the knowledge originates. While it does not mandate its members to reject applications due to traditional knowledge sources, the disclosure requirement will enable greater transparency in the patent examination process. GRATK also calls for a global system of traditional knowledge databases, such that national patent offices can more readily assess whether an application truly contains a “novel” invention. This would create a more efficient, robust patent examination and allow indigenous advocates to challenge patents without expending excessive resources to collect the requisite evidence. The World Intellectual Property Organization (“WIPO”), which administers GRATK, already administers a database of global patents and now maintains an extensive list of traditional knowledge databases worldwide. Although GRATK is only binding on its 38 signatories as of December 2024, experts are hopeful that it will soon be ratified by major economies like Australia, Brazil, and India.

Conclusion

In the context of traditional medicine, there is not necessarily an inherent conflict between social justice and innovation. The discoveries of indigenous people can fill the existing gaps in modern medicine and serve the needs of patients who either do not want or cannot use existing treatments. However, three key needs must be met for the system to be just: attribution of source, informed consent, and sharing the profits from these cures with the people who created them. All three issues are addressed by GRATK (attribution) and Nagoya (consent and benefit-sharing), and the growing web of traditional knowledge databases is empowering advocates to challenge biopiracy when it occurs. Although it is unclear whether the new administration will seek US accession to either treaty, patent law in its current form has been effectively used by advocates to combat biopiracy at its source. Unless the USPTO commits to more proactively examining traditional knowledge sources, this fight will remain dependent on the availability of traditional knowledge resources and the vigilance of indigenous advocates.

I Have A Bad Feeling About This: Copyright Infringement By Fan Works

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By: Wolf Chivers

Suppose one day someone is bored and exploring some of the stranger sides of YouTube, only to be inexplicably graced with the knowledge that lightsaber stunt fighting exists. It reminds them of the time they dressed up as a Jedi as a kid for Halloween. But that lightsaber they had for their costume was three colored, telescoping tubes inside a plastic toy, and the people in that sparring video are swinging hard. Where does one get a lightsaber for their newfound hobby that will hold up to that kind of impact?

Soon they are down the Internet rabbit hole to discover that there is a whole wealth of fancy, expensive lightsabers on the market. The only mention of “Disney” on those websites sits at the very bottom of the page as a tiny disclaimer stating that the products are not associated with “Disney, LUCASFILM, or any Lightsaber franchise.” Given Disney’s history of zealously protecting its intellectual property, even against small businesses and individuals, could Disney try to stop these lightsaber sales? These third-party manufacturers are not pop-up companies who are in and out of business too quickly to sue. Many of these businesses are well-established manufacturers with Ultrasabers being nearly 20 years old and one of the highest-profile names on the market. Nevertheless, the question remains as to whether Disney has a basis for a copyright infringement claim. 

The Empire—Copyright Law

Even though Disney owns the Star Wars intellectual property, whether or not lightsabers are copyrightable is tricky. Copyright protections extend to a wide variety of media, including motion pictures. Owners of copyrights generally have exclusive rights to use, reproduce, and distribute their work or derivatives based on their work, to prevent its copying. The Star Wars films and many of their specific elements are subject to copyright, including aspects like individual characters. However, copyright law does not protect ideas or concepts, only the specific portrayals or depictions of an idea. Consequently,  the central idea of a laser sword is not copyrightable, but the particular ways Disney has portrayed lightsabers are. Therefore, lightsaber manufacturers could potentially claim that their sabers are portrayed sufficiently differently from those depicted in Star Wars. 

For some time, it seemed like some companies were making halfhearted attempts to walk such a line. When they made screen-accurate replicas, they were often titled in such a way as to tip off fans who knew the source material, without explicitly claiming it was a certain character’s lightsaber. Luke’s lightsaber was not advertised as “Luke Skywalker’s lightsaber,” it was “the Graflex,” a nod to the fact that the original Star Wars lightsaber prop was made from a Graflex camera flash tube. Ahsoka Tano’s referenced “Fulcrum,” Mara Jade’s was the “Emperor’s Hand,” and so on. These are instances of intentional references to the properties in which they appeared without making outright claims.

Now, however, some of the lightsaber manufacturers have appeared to give up the charade and have overt “character lightsabers” sections on their websites that openly purport to be accurate replicas of the lightsabers from Star Wars properties. In so doing, manufacturers are not even trying to pretend their replica lightsabers are different from those seen in Star Wars.

However, some of the manufacturers also have lightsabers that are not specific character replicas and are at least original individual designs. What about those, if the general idea of laser swords is not copyrightable?

The First Order—Derivative Works

Copyright holders generally have the right to control the creation of derivatives based on their work. Derivative works are products based on or derived from already-existing works. There is no hard standard for determining how much of a copyrighted work a derivative work must change before it no longer infringes on the copyright, but it does infringe if the two works are substantially similar. The test for substantial similarity is subjective; the aim is to assess the total concept and feel of the two works. In effect, the court is trying to determine whether the derivative work copies the essence of the original. 

Lightsabers are iconic. Even the third-party manufacturers acknowledge it. There are many recognizable aspects of lightsabers that such manufacturers seek to duplicate, from the sounds to the meaning of the blade colors to the fact that in Star Wars the lightsabers are powered by crystals in the hilt. Lightsaber designs can vary greatly, from the complex and metal to the simple and wooden, but they are all still lightsabers. Perhaps most importantly, these third parties are still marketing their products as lightsabers, and consequently derivatives, not generic laser swords. Creating a lightsaber in an original shape does not seem to alter the “total concept or feel” in such a way as to render it not, in essence, a lightsaber, and so even the designs not directly drawn from a specific character are likely still infringing.

The Rebellion—A Possible Defense

Even if a work would be infringing on a copyright, there are certain uses for a copyrighted work that are immune from infringement claims, mostly found in sections 107-112 of Title 17. Most are irrelevant to lightsaber manufacturers; for example, there are protections for reproductions for libraries and for educational purposes. Fair use, however, may provide a possible defense for third-party lightsaber manufacturers. Fairness is determined by weighing four factors: the purpose and character of the use, the nature of the copyrighted work, how much of the copyrighted work is used, and the effect of the use on the market. However, courts also look for whether the new work transforms the original in some way, especially by adding a new expression, meaning, or message. 

There is maybe some narrow possibility that lightsaber sellers could claim fair use because they are adding an element of transformation, even though most of the factors seem to weigh against them. First, they are building lightsabers to sell, and commercial purposes are less likely to be fair use. Second, Star Wars is a creative work, and copying creative works is less likely to be fair use. Third, sellers are using basically all of the work; as previously discussed, many of the lightsabers are highly accurate replicas of those belonging to specific characters. Fourth, sellers seem likely to have an effect on the market; they are selling lightsabers alongside Disney.  

The lightsaber manufacturers have, however, added at least one thing that might be transformative—their lightsabers are advertised and warrantied for full-contact dueling, while Disney’s lack a similar warranty. Still, the question of transformation looks mostly at adding a new expression, meaning, or message. Adding durability might not give the lightsabers a new meaning, even if it perhaps adds functionality. Therefore, arguing that there is enough transformation to outweigh the four factors is tricky.

Conclusion 

In conclusion, even if Disney has chosen not to take action against third-party lightsaber manufacturers, it seems likely that it would have a viable copyright infringement claim and fair use would be a tricky defense for the manufacturers to put forth. Were Disney to take action against these third parties though, it would raise a question—where should fans go for dueling lightsabers? Should copyright law give copyright holders the power to withhold a product that passionate fans want, or is there a need for further exceptions? 

 #WJLTA #disney #copyright #infringement #starwars #lightsaber

Public Services Taken Hostage by Hackers

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By: Jonah Haseley

On November 4th, 2024, cybercriminals orchestrated an attack against Washington’s Administrative Office of the Courts (AOC) which resulted in the Washington Courts website being unavailable to the public for two weeks. The AOC develops budgets for the courts, runs its computer systems, and performs policy research. The cyberattack was substantial enough that the State Supreme Court issued an emergency order temporarily altering court rules across the state to cope with the outage. The order changed filing deadlines for civil cases, as well as core criminal rules for issues such as arraignment, speedy trial, and sentencing. Dozens of local courts issued corresponding emergency orders. The attack affected different Washington courts differently. It impacted those which rely on the state’s network the most. Others, like King County Superior Court, proceed more normally with their separate case management systems still functioning.

While the cyberattack the website remained down, the state found temporary substitutes to maintain contact with the public. Washington Courts posted updates on its Facebook page and collaborated with the State Bar Association. It also set up email inboxes to substitute for certain electronic filings.

The outage impacted many people in addition to court employees and litigants, including prospective gun owners. Washington presumptively requires background checks for firearm purchases, and the cyberattack disabled this capability. According to Washington State Patrol, although the AOC fixed the system, the attack caused a significant backlog which may result in delays. One gun rights group has publicly threatened to sue, but this seems unlikely now that AOC has resolved the issue. The attack touched other state agencies, like the Washington Department of Children, Youth and Families, which relies on the state’s system to perform background checks for foster families. However, the agency did still have access to related nationwide services. Additionally, the attack delayed the approval process for state gambling licenses.

Although two weeks is a substantial amount of time for state services to be unavailable, evidence suggests that the impact on public services could have been much worse. The AOC stated in a press release that quick action staved off any data breach or ransomware. Other government entities in Washington have not been so lucky. Last May, cybercriminals attacked the Seattle Public Library, and the library was not able to recover fully until September. The attack also leaked personal data for some of its employees.

After the AOC cyberattack court systems like King County Superior Court did not lose access to their operational networks because they had a separate system from the state. At the same time, having many different systems reduces the resources available to each. Fewer resources means fewer defenses, which makes libraries appealing targets. Important public services are more likely to be attacked because they are important. Hackers believe government agencies will pay a ransom to resume service to the public as quickly as possible.

Washington does have a State Office of Cyber Security which receives federal funding from the Department of Homeland Security through the Infrastructure Investment and Jobs Act. The federal funding is not without strings attached – the recipient is required to contribute its own money to cybersecurity projects to get additional federal support. Washington’s legislature has fortunately matched approximately 9 million in federal funds, saving its local jurisdictions from that financial burden. However, the federal government has agreed to contribute 14 million, and how the remaining 5 million will be matched remains unclear. Bob Ferguson will take office in January as Washington’s new governor. He will replace Jay Inslee, the outgoing three-term governor. To protect our public services, he should commit to matching the remaining federal money so that local jurisdictions do not have to decide between fiscal and cybersecurity. 

The Art of Deception: Should Art Forgeries Be Met with Litigation or Leniency?

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By: Olivia Bravo

Intro

Art forgery is a crime, but should it be met with such harsh penalties? If some art forgeries are so good that they are never discovered and enjoyed the same as the original work, does this argument deserve a more nuanced approach? More importantly, is the cost of litigation worth the hassle?

Art Forgery Defined   

There are many arguments for and against authenticity in art. Is it the artist that creates a work that gives it its value? Or is a work’s value derived from its innate qualities? Because of the subjectivity of the art world, it has long since been a landmine for conmen and fraudsters to exploit. An art “forgery,” or art “fake” is when an artwork is presented by one artist, despite being created by another. Although used interchangeably, an art fake is a copy or replica made and circulated on the market while the original is hanging in a museum or in a private collection, whereas a forgery is made with the intention to deceive an audience. 

Art forgeries undermine the integrity of the art world, but in order to understand the full scope of the issue, it is important to recognize that a forger’s motivations are often more nuanced. Similarly, while psychological factors drive forgers to create their works, the allure of counterfeit works is not driven by the forger, but by societal demand. This recognition is crucial for transparency and for enforcing authenticity in the art market. 

The Case for Litigation

Art has a universal cultural impact, and as a society, we have placed a high value on the protection and cultivation of art and artists. A harsh reality of today’s art world is that more fakes and forgeries are offered for sale than legitimate works, to the point that 20% of the pieces in the world’s most prestigious museums and galleries could be potential forgeries. Many leading art experts and authenticators are even refusing their services to avoid liability, leaving authentication of works to scientists to use instrumental analysis and imaging to determine age and material composition of works. Art forgeries have had a significant impact on the fine art world: creating an economic burden for private buyers, galleries, and art museums who have the sole responsibility of litigating against forgers. 

Art forgeries also create a significant economic deficit when sold to consumers. It is estimated that counterfeit goods cost the US economy between $200- $250 billion per year. The US government suffers significant tax implications from the presence of counterfeit goods in the marketplace. With respect to art forgeries, an individual buyer suffers economic hardship because they are assumed to have purchased an art piece found to be a forgery at an inflated price, which saturates the art market and affects the valuation of other artist’s price point. 

The United States does not have any federal art forgery laws. Federal prosecutions have been successful under the Racketeer Influence and Corrupt Organizations Act (RICO), and independent federal charges are authorized by the Federal Trade Commission under the FTC Act. Even so, criminal prosecutions are rarely brought due to the high burden of proof, and only pursued in extreme cases. Many states require a high burden of proof of intent to defraud in order to bring criminal charges, and only protect the victims of forgeries through consumer protection statutes. 

An arguably more effective means of litigation, through the application of intellectual property laws, would protect artists rights and fill gaps left by criminal and civil protections due to the lower standard of proof needed to bring an infringement claim. Copyright and trademark law can be advantageous in litigating art forgery, assuming the work is not in the public domain and the copyright has been registered. Both have limited reach due to their specific authorship and publication requirements, but can be attached to federal criminal laws to be more effective. However, overall stricter regulation and harsher punishments in the U.S. and globally might better confront the circulation of fake art and deter future perpetrators.

Is There a Case For Leniency?

Art forgers are the talented creators of their art and own copyright protection to their original works. Should this be considered in the art forgery debate? For example, there is a psychological effect on how we perceive art that is disrupted by the knowledge that a work is a forgery. When the monetary value of a work is assigned according to the art market based on “fair market value,” but that value is tied to the artist and the perceived knowledge of their innate talent, what are we really valuing? Is it the art or the artist?  

Substantial resources are being invested into the prevention of art forgeries to the extent that art experts, authenticators, and foundations—dedicated to preserving the legacy of great artists—are becoming extinct for fear of litigation. This burden of authenticity has led to a situation where prosecution is the only recourse once a forger has already been found guilty. But lawsuits are so expensive that there might be room for a nuanced approach that either includes more protections for all parties involved or for a rethinking of art forgery litigation. 

So, what is the solution to a problem that clearly has many ethical and theoretical considerations? Should forgers be met with harsh punishments that will further shape the legal landscape of art fraud prosecution? Or is there a case for potential leniency depending on the intent of the artist and the subsequent impact their forgery has on the viewer and the world? Authenticity remains an elusive judicial concept, and as courts evaluate how to assign losses for victims as well as fair sentences for art forgers, a critical rethinking on how we view art and art litigation might be in order.