Prior to starting this blog, I wrote a series of articles & analysis about legal updates on Artificial Intelligence, Intellectual Property, Cybersecurity and Immigration and their greater impact on respective parties. While these articles were written in 2017, I still believe they are relevant today and decided to share a compilation of “Posts from the Past Relevant Today.”

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How the “Intelligence” part of “Artificial Intelligence”

Implicates U.S. and EU Copyright Law

Originally posted April 7th, 2017

Artificial Intelligence (AI), according to Oxford Dictionary, is “the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.” According to Merriam-Webster dictionary, AI is “the branch of computer science dealing with the simulation of intelligent behavior in computers; the capability of a machine to imitate intelligent human behavior.

At the heart of both definitions of AI is the ability of a machine to “be human” by being able to imitate and carryout the mental functions of humans in the processes they are designated to perform. This concept plays an important role in Intellectual Property, as one’s “humanness” brings with it rights and protections associated with their intellectual works. Intellectual Property itself refers to , “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” Copyright Thus, the overarching question is this – if AI machines can imitate human mental functions, and thus are capable of producing, among other things, creative works, should their works be afforded Intellectual Property law protections, such as Copyright?

In a recent article written by Rhine Mohindroo for Alleywatch, this question has emerged regarding the output of AI machines and U.S. Copyright protections, looking specifically at the creative output of AI machines. From the point of view of U.S. Copyright law, works that lack human authorship are not copyrightable. While AI machines are not human, they possess human features, such as the ability to make decisions. Thus, the question then becomes, if an AI machine can make independent decisions int he production of creative works, why then would the creative work not be protectable under U.S. Copyright laws?

On the other side of the Atlantic, a motion was submitted by Members of the European Parliament (MEPs) earlier this year, calling on the European Commission to, among other things, “elaborate [on a] criteria for an ‘own intellectual creation’ for copyrightable works produced by computers or robots.” The basis of this specific motion is based on the fact that technological advances are enabling AI machines to be more human. In the motion, MEPs stated that, “thanks to the impressive technological advances of the last decade, not only are today’s robots able to perform activities which used to be typically and exclusively human, but the development of autonomous and cognitive features – e.g. the ability to learn from experience and take independent decisions – has made them more and more similar to agents that interact with their environment and are able to alter it significantly…”

The overarching questions posed in this comparative look at the views of AI’s legal rights in Copyright protections is: 1) whether an actual human is a necessary component of “human authorship” considering the fact that AI machines are being developed to have the ability to carry out the human processes in authorship; and 2) how will respective laws address the “intelligent” aspect of AI machines and their ability to create intellectual works, that would otherwise be afforded copyright protections if created by an actual human.

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U.S. Copyright Law Update:

Clothing Designers Get More Guidelines to Protect Their Designs

Originally posted on March 28th, 2017

Last week, the U.S. Supreme Court ruling in the case of Star Athletica, L.L.C. v. Varsity Brands, Inc., ET AL., provided clothing designers with more guidelines to copyright their original designs. Specifically, the Court issued guidelines to determine whether a clothing design is a “separable” expression and thus copyrightable. If a clothing designer can prove that their clothing design is “separable” from the utilitarian function of the clothing, they can prevent others from reproducing the design in any medium.

The Supreme Court held that a clothing design, which is a feature incorporated into the design of a useful article, could be protected if and only if the feature: “(1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”

Generally speaking, what is termed as “useful articles” such as clothing are not afforded copyright protections in the U.S. unless it can be shown that the design feature itself is separate from the article of clothing. In other words, the design has no utilitarian function. Prior to the ruling, the idea of “separability” in this context has bewildered the courts. As was stated by Justice Thomas, “We granted certiorari to resolve widespread disagreement over the proper test for implementing §101’s separate-identification and independent-existence requirements.” What this ruling does is provided a clearer guidelines for courts to determine when a clothing design is separate from the utilitarian function of the article, and thus can be afforded copyright protections.

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New Cybersecurity Regulations For Banks, Insurance Companies, and other Financial Institutions Under NYSDFS Jurisdiction Take Effect March 1st, 2017

Originally posted February 24th, 2017

Effective March 1st, 2017 entities under the jurisdiction of the New York State Department of Financial Services (“NYSDFS”) will have new Cybersecurity Requirements. The new regulations will apply to banks, insurance companies and other institutions subject to the jurisdiction of NYSDFS.

Purpose of the NYSDFS New Cybersecurity Regulations

The new regulations set out to protect against, “…the ever growing threat posed to information and financial systems…that can cause significant financial losses for DFS regulated entities as well as for New York consumers whose private information may be revealed and/or stolen for illicit purpose.” NYSDFS has created certain regulatory minimum standards, without “…being overly prescriptive so that cybersecurity programs can match the relevant risks and keep pace with technological advances.” Generally put, NYSDFS wants financial institutions under its jurisdiction “to adopt cybersecurity programs and … to be subject to minimum standards with respect to their programs.”

NYSDFS Cybersecurity Program General Requirements

Those entities covered under the Regulation are required to maintain a cybersecurity program that is designed “to protect the confidentiality, integrity, and availability of the entities Information Systems.” The design must be based on the “Covered Entity’s Risk Assessment” and must perform certain core cybersecurity functions. Such functions include: identifying risks, detecting “Cybersecurity Events”, recovering from such events and restoring normal operations and services after the occurrence of a Cybersecurity Event.

Covered Entities will also be required to have an Chief Information Security Officer, and perform functions, such as: Penetration Testings and Vulnerability Assessments, Audit Trails, Risk Assessments and Encrypting nonpublic information. Additionally, covered entities will be required to limit access privileges to Information Systems, including instituting a multi-factor authentication to prevent unauthorized access, have an incident response plan and write cybersecurity policies and procedures for Third Party Service Providers who are also covered under the new regulations.

“Cybersecurity Event” Notice to Superintendent of NYSDFS

Covered entities also must provide Notice to the NYSDFS’s Superintendent no more than 72 hours after it is determined that Cybersecurity Events specified under Section 500.17(a) have occurred. Additionally, each year, covered entities are required to submit a written statement asserting the prior year’s compliance of the new requirements by February 15th.

NYSDFS Cybersecurity Policy 

Regarding Cybersecurity Policy, Covered Entities will be required to have a written implemented policy. The policy must be based upon the Covered Entity’s Risk Assessment and include the entities Cybersecurity operations under Section 500.03, including: information security, data governance and classification, systems and network security, customer data privacy, and incident response.

NYSDFS Exemptions

The new requirement does have limited exemptions for covered entities that fall under Section 500.19 regulations. For example, covered entities that have only 10 employees, are exempt from the following requirements: 1)having an Chief Information Security Officer; 2) conducting Penetration Testing and Vulnerability Assessments; 3) having audit trails; 4) including written procedures, guidelines and standards for in-house developed applications utilized by the Covered Entity; 5) having Cybersecurity Personnel and Intelligence; 6) having Multi-Factor Authentication; 7) implementing and providing training and monitoring; and 8) Encrypting nonpublic information.

Accessing the NYSDFS New Cybersecurity Regulations 

The new regulations can be accessed at the following link.

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New “National Interest Waiver” Framework Could Increase the Eligibility of Self-Employed Foreign Entrepreneurs to Obtain U.S. Permanent Residency

Originally posted January 12th, 2017

Last month’s decision in the Matter of Dhanasar (26 I&N Dec. 884 (AAO 2016)) by the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) has vacated the old framework of adjudicating national interest waivers for EB-2 visa petitioners and adopted a new framework that provides more flexibility to self-employed foreign entrepreneurs.

The Old Framework for Assessing Eligibility for “National Interest Waivers” Posed Difficulties for Self-Employed Foreign Entrepreneurs

The EB-2 is an Employment-based visa that leads to a Green Card (legal permanent residency). To be eligible for the EB-2 visa, petitioners must either possess an Advanced Degree (with some exceptions) or be able to demonstrate “exceptional ability” in the sciences, arts or business. In order for a foreign national to receive the EB-2, the petitioner would have to obtain a labor certification from the U.S. Department of Labor for the job offer. The labor certification demonstrates, among other things, that the Department of Labor has determined that there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the job. If it is granted, the employer would then file a petition requesting the EB-2 classification.

The job-offer and subsequent labor certification requirement can be waived as a matter of discretion by USCIS when it deems it to be in the national interest. It is under this “national interest waiver” that self-employed foreign entrepreneurs could petition for a EB-2 classification. The framework, however, for adjudicating their eligibility was very ambiguous and resulted in the misinterpretation of what evidence needed to be submitted by the petitioner and what evidence needed to be evaluated by the adjudicator.

Under the old framework, there were two requirements that had to be satisfied in order for USCIS to use its discretion to grant the waiver: 1) the the petitioner (the Employer) must demonstrate that the beneficiary (the foreign national) qualifies as a member of the professions holding an advanced degree or as an individual of exceptional ability; and 2) the petitioner must establish that it would be in the national interest to waive the job-offer and labor certification requirement.

The challenges faced by self-employed foreign entrepreneurs was a result of the ambiguity of the third prong of the second requirement, which required the petitioner to demonstrate that U.S. national interest would be adversely affected if a labor certification were required for the foreign national. The AAO found the third prong of the national interest waiver requirement to be confusing for both adjudicators at USCIS and petitioners, as well as contradictory to the intent of the waiver itself. Having the petitioner present evidence of the labor market in response to the requirement of demonstrating the adverse effect of the labor certification, contradicted the intent of the national interest waiver, which was to waive the need for labor certification.

The AAO also acknowledged the framework hinder the applicability of waiver to self-employed foreign entrepreneurs. Not only did the AAO find the third prong difficult for both petitioners and adjudicators to present and evaluate respectively, – it stated in its December 27th, 2016 opinion that the old framework, “…has proven particularly ill-suited for USCIS to evaluate petitions from self-employed individuals, such as entrepreneurs.” (Dhanasar at 888). Additionally, adopting a new framework for the national interest waiver supported AAO’s long held acknowledgement that, “…there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification.” (Dhanasar at 888).

The New Framework for Evaluating National Interest Waivers Could Provide More Opportunities for Self-Employed Foreign Entrepreneurs

The new framework adopted to assess eligibility for the national interest waiver is intended to, “…provide greater clarity, apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals and better advance the purpose of the broad discretionary waiver provision to benefit the United States.” (Dhanasar at 888-9). Under the new framework, foreign nationals who qualify under the EB-2 visa category and are seeking the national interest waiver would be required to demonstrate by a preponderance of the evidence that 1) their specific endeavors in areas of business, entrepreneurialism, science, technology, culture, health, or education has substantial merit and national importance; 2) they are well positioned to advance the proposed endeavors; and 3) that, on balance, if would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. (Dhanasar at 889).

The new framework allows USCIS to evaluate a number of factors when exercising their discretion to determine whether waiving the job offer and thus labor certification process would, on balance, be beneficial to the United States. Petitioners seeking waivers are no longer required to demonstrate harm to the national interest or make comparisons against U.S. workers in the petitioner’s respective field – in other words, do some variation of the labor certification.

More Discretion Means More Possibilities for Self-Employed Foreign Entrepreneurs to do Business in the U.S. 

The new framework allows USCIS to use its discretion to provide national interest waivers to self-employed foreign entrepreneurs who qualify under the EB-2 visa classification. As noted by the AAO in the Dhanasar opinion “this more flexible test, which can be met in a range of ways…is meant to apply to a greater variety of individuals.” (Dhanasar at 891).

In adopting the new framework, the AAO seeks to address the problematic challenges to certain petitioners, such as self-employed entrepreneurs, whose entrepreneurial endeavors would more likely than not be beneficial to the national interest of the U.S.

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The views expressed in this article do not constitute legal advice and legal information provided in this post should not be relied upon as legal advice. Please contact an Attorney for advice on your specific matter.

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