Business
Commentary: In two new court cases, judges find that AI does not have human intelligence
It’s becoming clearer with every passing day that the only people making a serious effort to come to grips with the implications of artificial intelligence for society aren’t legislators, or business leaders, or AI promoters themselves. They’re judges.
Indeed, in recent weeks, judges in two federal cases have drawn a line that seems to have eluded many others contemplating AI. The cases relate to copyright law and attorney-client privilege.
In both cases, the judges have effectively declared that AI bots are not human. They don’t have rights reserved for people, and their outputs don’t deserve to be treated as though they come from human intelligence or have any special high-tech standing.
Must invention remain exclusively human, or can autonomous computational systems genuinely originate ideas?
— Artist and computer scientist Stephen Thaler
There’s more to those cases than that. Both cases, including one that got as far as the Supreme Court, underscore the determination of AI promoters and uses to infiltrate the new technology deeper into society.
Start with the more recent case. On Monday, the Supreme Court declined to take up a lawsuit in which artist and computer scientist Stephen Thaler tried to copyright an artwork that he acknowledged had been created by an AI bot of his own invention. That left in place a ruling last year by the District of Columbia Court of Appeals, which held that art created by non-humans can’t be copyrighted.
The case revolved around a 2012 painting titled “A Recent Entrance to Paradise,” depicting train tracks running under a bridge and disappearing into vegetation. Thaler wrote in his application for a copyright that the “author” of the work was his “Creativity Machine,” an AI tool, and that the work was “created autonomously by machine.”
The appellate ruling didn’t engage in artistic criticism, but the work’s artificial origin might be manifest to the discerning eye — its landscape is busy yet indistinct, sort of a melange of green and purple, and the framing doesn’t have any artistic logic — the eye doesn’t know what it’s supposed to be following. But Thaler says it’s the AI bot’s creation and wasn’t generated in response to any user prompt.
In any event, for Judge Patricia A. Millett, who wrote the opinion for a unanimous three-judge panel, the case wasn’t a close one. She cited longstanding regulations of the Copyright Office requiring that “for a work to be copyrightable, it must owe its origin to a human being.”
Millett noted that Thaler hadn’t bothered to conceal the non-human origin of “A Recent Entrance,” acknowledging in court papers that the painting “lacks human authorship.” She rejected Thaler’s argument, as had the federal trial judge who first heard the case, that the Copyright Office’s insistence that the author of a work must be human was unconstitutional. The Supreme Court evidently agreed.
Thaler told me he didn’t see the Supreme Court’s turndown as a “legal defeat.” In a LinkedIn post about the case, he wrote that the decision “represents a philosophical milestone — one that exposes how deeply our intellectual property system struggles to confront autonomous machine creativity.”
As that suggests, Thaler believes we shouldn’t distinguish how we view human creations from machine outputs. “Intelligence, creativity, and invention are not limited to human products,” he told me by email. Autonomous computational systems such as his AI program, he said, “can generate these functions independently.”
Millett’s ruling actually opened the door to admitting AI into the copyright world — but only when it’s used as a tool by a human author. What set Thaler’s case apart from those, she wrote, was his insistence that his AI bot was the “sole author of the work” (emphasis hers), “and it is undeniably a machine, not a human being.”
That brings us to the second case, which involved the question of whether an AI bot’s work should be protected under attorney-client privilege. Federal Judge Jed S. Rakoff of New York ruled, concisely, “The answer is no.”
As I’ve written in the past, Rakoff is one of our most percipient jurists about the impact of new technologies on the law. In his occasional essays for the New York Review of Books, he’s examined how a secret AI algorithm has skewed the sentencing of criminal defendants (especially Black defendants), how cryptocurrency advocates have made a tangle of existing laws on fraud, and how the misuse of cognitive neuroscience has resulted in convictions based on false memories.
In other words, Rakoff isn’t a judge you should try snowing with technological flapdoodle.
The case involved one Bradley Heppner, who was indicted by a federal grand jury for allegedly looting $150 million from a financial services company he chaired. Heppner pleaded innocent and was released on $25-million bail. The case is pending.
According to a ruling Rakoff issued on Feb. 17, the issue before him concerned exchanges that Heppner had with Claude, the chatbot developed by the AI firm Anthropic, written versions of which were seized by the FBI when it executed a search warrant of Heppner’s property.
Knowing that an indictment was in the offing, Heppner had consulted Claude for help on a defense strategy. His lawyers asserted that those exchanges, which were set forth in written memos, were tantamount to consultations with Heppner’s lawyers; therefore, his lawyers said, they were confidential according to attorney-client privilege and couldn’t be used against Heppner in court. (They also cited the related attorney work product doctrine, which grants confidentiality to lawyers’ notes and other similar material.)
That was a nontrivial point. Heppner had given Claude information he had learned from his lawyers, and shared Claude’s responses with his lawyers.
Rakoff made short work of this argument. First, he ruled, the AI documents weren’t communications between Heppner and his attorneys, since Claude isn’t an attorney. All such privileges, he noted, “require, among other things, ‘a trusting human relationship,’” say between a client and a licensed professional subject to ethical rules and duties.
“No such relationship exists, or could exist, between an AI user and a platform such as Claude,” Rakoff observed.
Second, he wrote, the exchanges between Heppner and Claude weren’t confidential. In its terms of use, Anthropic claims the right to collect both a user’s queries and Claude’s responses, use them to “train” Claude, and disclose them to others.
Finally, he wasn’t asking Claude for legal advice, but for information he could pass on to his own lawyers, or not. Indeed, when prosecutors tested Claude by asking whether it could give legal advice, the bot advised them to “consult with a qualified attorney.”
In his ruling, Rakoff did make an effort to address the broader questions judges face in dealing with AI. “Only three years after its release,” he wrote, “one prominent AI platform is being used by more than 800 million people worldwide every week. Yet the implications of AI for the law are only beginning to be explored.”
He concluded that “generative artificial intelligence “presents a new frontier in the ongoing dialogue between technology and the law….But AI’s novelty does not mean that its use is not subject to longstanding legal principles, such as those governing the attorney-client privilege and the work product doctrine.”
In this case and elsewhere, Rakoff has shown a superb grasp of technology issues. In his 2021 essay about the AI algorithm capable of sending people to jail, he put his finger on the factor that makes the very term “artificial intelligence” a misnomer.
The term, he wrote, tends to “conceal the importance of the human designer….It is the designer who determines what kinds of data will be input into the system and from what sources they will be drawn. It is the designer who determines what weights will be given to different inputs and how the program will adjust to them. And it is the designer who determines how all this will be applied to whatever the algorithm is meant to analyze.”
He’s right. That why judges have had so much trouble determining whether the AI engineers feeding information into chatbots to make it seem like they’re “creative” and even “sentient” are infringing the copyrights of the original creators of that information, or creating something new.
The problem is that they’re asking the wrong question. Everything an AI bot spews out is, at more than a fundamental level, the product of human creativity. The AI bots are machines, and portraying them as though they’re thinking creatures like artists or attorneys doesn’t change that, and shouldn’t.
Business
Schwab Affiliate Halts Customer Donations to Southern Poverty Law Center
The donor-advised fund affiliated with Charles Schwab, DAFgiving360, has suspended account holders’ ability to give money to the Southern Poverty Law Center, a civil rights group.
Last week, the Justice Department indicted the group and accused it of financial crimes. This week, the donor-advised funds that bear Fidelity’s and Vanguard’s names also cut the group off.
A spokeswoman for the Schwab-affiliated fund said, “If a governing body of a charity declares an investigation into a charity it oversees, DAFgiving360 may suspend grants to the organization.” She would not provide a list of other organizations that it has suspended.
Donor-advised funds allow individuals to create accounts, donate cash or securities into them and take a tax deduction for the full amount that year. Then they can parcel out donations to charities and other nonprofits over many years.
“Giving to your favorite charity has never been easier” is the language that DAFgiving360 uses on its website. Charles Schwab lists the account balance right next to investment account balances on its own website.
DAFgiving360 is also careful, however, to use specific language that gets to the legal reality of how the funds work. Users can “recommend” grants to “eligible” charities, for example, which means DAFgiving360 controls the money and the account holder is technically just advising.
This is almost never a practical issue for account holders; donor-advised funds generally rubber-stamp donation requests. But in the wake of the criminal indictment, which accused the S.P.L.C. of paying informants money that contributed to the extremism that it opposes, President Trump said he believed that the S.P.L.C. was behind the racist Charlottesville, Va., riots in 2017.
Mr. Trump did not provide evidence for his allegations against the center. And many Fidelity and Vanguard customers are furious about the move against the S.P.L.C.
DAFgiving360 customers are expressing similar sentiments. “This is too safe a position, and they shouldn’t have done it,” Jani Rachelson, a retired labor lawyer in New Jersey who was unable to donate to the S.P.L.C., said of Schwab’s action. “Compliance in advance is the scourge of our life these days.
DAFgiving360 said in its statement that it applies its policies consistently across all charitable organizations, regardless of political viewpoint or orientation. In the past, a Schwab predecessor charitable-fund entity stopped granting money to National Rifle Association-affiliated charities when an active investigation was underway. The N.R.A. does appear in DAFgiving360 search results now for people making grant requests.
Prudent trustees with decision-making authority do consider indictments of charities before approving donations to them.
At Merrill Lynch, however, the donor-advised fund operation relies on the Internal Revenue Service for guidance. Since the agency hasn’t revoked S.P.L.C.’s nonprofit status, Merrill Lynch’s donor-advised funds are allowing donations to go through for now.
Meanwhile, Fidelity’s, Schwab’s and Vanguard’s actions raise complicated questions.
“Why not other charities that have also been attacked by the administration, including many major universities,” said Roger Colinvaux, a nonprofit law expert and professor at Catholic University’s Columbus School of Law, via email. “The incident thus raises questions of how DAF sponsors draw the line and whether they are succumbing to political pressure or advancing their mission.”
In March, the Justice Department filed a civil lawsuit against Harvard University, accusing it of civil rights violations and saying it “tolerated antisemitic mobs of students.” As of Friday morning, the “recommend a grant” page of the DAFgiving360 website returned many options from a “Harvard University” search.
Business
Google, Nvidia and other tech titans sign AI deal with the Pentagon
Eight technology companies, including Google, Nvidia and SpaceX, have struck deals with the Pentagon to help the U.S. military gain an edge on the battlefield.
“These agreements accelerate the transformation toward establishing the United States military as an AI-first fighting force and will strengthen our warfighters’ ability to maintain decision superiority across all domains of warfare,” the Department of Defense said Friday.
The companies will deploy their AI technology on the department’s “classified networks” for “lawful operational use,” according to the agency.
OpenAI, Microsoft, Amazon Web Services, Oracle and AI startup Reflection are among the companies that agreed to work with the Pentagon.
The agreements underscore how tech companies are expanding their work with the U.S. military even as some workers raise concerns about the use of AI for autonomous weapons and mass surveillance. Anthropic, the San Francisco company behind the chatbot Claude, clashed with the Pentagon earlier this year over whether there were adequate safeguards around the military’s use of its technology.
The Department of Defense accused Anthropic of trying to “seize veto power” over military decisions, though the company pushed back against that characterization. The agency labeled Anthropic a supply chain risk, and the Trump administration directed federal agencies to stop using the company’s tools, setting off a legal battle over that designation.
This week, hundreds of Google employees urged its chief executive, Sundar Pichai, to reject the use of its AI systems for classified workloads to ensure that its technology isn’t used in “inhumane or extremely harmful ways.” Harmful use may occur without their knowledge since the work is classified, workers said in the letter.
Google, Reflection and SpaceX didn’t respond to a request for comment. The Department of Defense didn’t say how much each company was being paid. A Pentagon official said some of the companies have active contracts while others have made agreements but formal contract are forthcoming.
In an interview with CNBC, the Pentagon’s chief technology officer, Emil Michael, said the department wanted to diversify the companies it worked with following its dispute with Anthropic.
“Guardrails are something that are negotiable based on what they are with all the companies, and they have different views on that,” he told CNBC. The guardrails also have to be consistent with the government’s values and restrictions, he added.
A source familiar with Nvidia’s Pentagon deal said the agreement involves work with its “Nemotron” AI models, which are used to build AI agents that can complete tasks, not its chips. The deal includes language that the use of the models will be consistent with civil liberties, constitutional rights and applicable law, the source said.
OpenAI said the deal announced by the Department of Defense refers to the agreement they struck with the agency earlier this year.
The company said that it wanted “the people defending the United States to have the best tools.”
OpenAI, which faced backlash for striking a deal with the Pentagon after the Anthropic fallout, said in March that its technology wouldn’t be used for mass domestic surveillance, high-stakes automated decisions or to direct autonomous weapons.
Other tech companies, such as Microsoft, Oracle and Amazon Web Services, have also said they want to support the military and ensure they have access to the best AI tools.
“We look forward to continuing to support the Department of War’s modernization efforts, building AI solutions that help them accomplish their critical missions,” Amazon Web Services spokesperson Tim Barrett said in a statement.
Business
Stocks and Oil Prices Sent Conflicting Signals in April Amid Havoc of Iran War
Lately, financial markets appear confused.
Oil prices recently hit their highest level since the start of the war in Iran, stoking broad worries about inflation and a global energy crisis.
Yet, it has been the best month for the stock market of President Trump’s second term. The S&P 500 ended April nearly 10 percent higher than where it ended March.
The last time the index rose more than 10 percent in a month was in November 2020, after Joseph R. Biden Jr. was elected president and early trials for Covid-19 vaccines showed promising results. On Friday, the S&P 500 rose a further 0.5 percent, putting it on course for a fifth straight week of gains.
To many outside observers, it seems incongruous that the oil market can be sending such a dour signal, while stocks reflect a strong sense of investor optimism.
But in this unusual moment, according to analysts and traders, bullish and bearish market signals can both be true.
While the stock market reacts to day-to-day news, it is primarily concerned with how that news affects the longer-term outlook for company earnings. Stocks initially fell when the United States and Israel attacked Iran on Feb. 28, reflecting uncertainty about the war’s duration, its impact on energy supplies and the fallout for corporate America.
Stocks began to rise again after the Trump administration and Iran started to de-escalate at the end of March, moving toward a cease-fire on April 8. The standoff between the countries has not ended, a peace agreement has not been reached, but for stock investors, the expectation is that the disruption to oil markets and supply chains won’t last much longer.
And the economic impact of the war, at least as far as the United States is concerned, has been manageable. Data on Thursday showed that the U.S. economy grew at an annual pace of 2 percent in the first three months of this year, boosted by spending on infrastructure by many of the big tech companies that have led the S&P 500 stock index to repeated new highs.
This week, Alphabet, Amazon, Microsoft and Meta, which collectively account for 20 percent of the S&P 500’s market value, said they had spent a combined $130 billion on data centers. The share prices of these members of the so-called Magnificent 7, a group of companies that also include Apple, Nvidia and Tesla, rose nearly 15 percent in April.
Strong earnings in other industries have also buoyed the market. Roughly a third of the companies in the S&P 500 have reported their financial results for the first quarter, and their average growth in earnings stands at roughly 15 percent, on course for a sixth straight double-digit quarterly rise.
Oil prices are a much shorter-term measure of investor sentiment than stock indexes. The oil market is primarily traded using futures contracts, which are derivatives that fix the price today for delivery at a specified date in the future. The most frequently cited oil prices refer to the next month or two. That means that changes in the conflict that could extend or shorten its duration by a few weeks show up in the price of oil but not necessarily in the stock market. Oil traders are fixated on the price of a barrel of crude in July, for example, while pension fund managers are thinking about market returns many years in the future.
This week, a deadlock over the future of Iran’s nuclear program appeared to threaten the fragile cease-fire with the United States, helping to push the price of Brent crude, the international oil benchmark, to a four-year high, of over $120 per barrel on Thursday.
But investors appear to anticipate some sort of resolution the further out they look. Futures contracts for deliveries of Brent crude in December still trade below $90 a barrel.
“While the geopolitical environment remains fluid on a day-to-day basis, markets appear to be assigning a higher probability to a relatively near-term U.S. exit from the Middle East, alongside a normalization in global supply chains that could ultimately pressure oil prices lower,” said Adam Turnquist, chief technical strategist at LPL Financial.
The timing of the Trump administration’s announcements of important changes in policy in the conflict with Iran have, to some extent, exacerbated the appearance of market moves — both on the way down and the way back up.
The war began after the market closed on the final day of February and the cease-fire was announced on the final day of March, so the stock market’s losses were concentrated in March and the recovery almost entirely captured in April.
There are reasons for trepidation among stock investors as the war enters its third month.
The conflict could drag on for longer than is currently expected. Oil prices with Brent futures contracts from September through November have all started to rise, moving above $90 in just over the past week. Although that means traders still expect the price of oil to drift downward in the coming months, crude is increasingly expected to stay elevated for longer, weighing on the economy. The government’s bond market also shows signs of lingering inflation risks stemming from the war, analysts have noted.
Many investors have also expressed a lack of conviction in the current rally, which is evident in the way investors are trading. Stock market trading volumes have been subdued through April, with some investors saying they have turned to the derivatives market to place bets on the market going higher, allowing them to profit if the rally continues but limit losses if the market falls again.
“As long as the economy continues to grow and companies are able to grow earnings, we can see higher stock prices even in the face of higher energy prices and inflation,” said Chris Zaccarelli, chief investment officer at Northlight Asset Management. “However, the longer the war drags on, the more investors will grow nervous and we could see some pullbacks as fears ebb and flow.”
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