As we head into a new year after a US election year, we are sure to see two things in the media, all kinds of articles on New Year’s Resolutions and all kinds of articles on what we can anticipate occurring in the inaugural year of the new administration.
So I thought that I would go with those flows and take a look at whether there are intellectual property discussions likely to be resolved this year, or whether, despite our initial commitments to stay the path to completion, such decisions will founder like so many January diets (“90% of people give up on their new year diet just 12 days into January, with 83% going on to gain back more weight than they lost”), first-quarter gym schedules (studies show that gym attendance spikes in January and remains above average through mid-March), and turn-of-the-calendar-page commitments to self-improvement. (as to keeping New Year’s Resolutions generally, “43% of people expect to fail before February, and a mind-blowing 23% do so in the first week”; only 9% succeed in achieving goals). With that description, you can see the importance of the question mark in the title, as these issues may or may not resolve in 2025, regardless of our initial intentions and commitments.
Will We Resolve The Question of Whether AI-Created Or AI-Contributed-To, Works Receive Protection?
What some (including me) might consider the biggest lingering IP question around relates to the status of works created by, or using artificial intelligence. That should not come as a surprise to readers here, as I wrote about that issue this past year (in June 2024), and in previous years (in February 2023 and June 2022), so I see it as a lingering and evolving issue.
When I tested my conclusion through a Google search of the legal and popular literature, the generative AI Overview function of Google notes that “the question of who owns content generated by AI, particularly with the rise of advanced generative models, is widely considered the most pressing intellectual property issue that needs to be addressed in 2025, as current legal frameworks struggle to define ownership when AI contributes significantly to creative outputs.” According to that same overview, the key points around this issue appear to be:
- Lack of clarity in copyright law: Existing copyright laws generally require human authorship for protection, creating ambiguity when AI generates content with minimal human intervention.
- Stakeholder concerns: Questions arise regarding who owns the copyright – the AI developer, the user who prompts the AI, or the original data used to train the AI model.
- Impact on creative industries: The potential for AI to generate large amounts of content raises concerns about copyright infringement and the impact on traditional creators.
- Need for new regulations: Many experts believe new legal frameworks are necessary to address the complexities of AI-generated content, potentially including guidelines on what constitutes sufficient human input for copyright protection.
This conclusion is shared beyond me and my AI, as several sources around the world have noted the importance of this issue. For instance, as those focused on Asian IP note:
AI-generated content, in particular, challenges traditional notions of authorship and ownership, requiring new guidelines for copyright and patent eligibility,” said Anton Blijlevens, a principal at AJ Park in Auckland. “This will likely lead to reforms in IP laws to clarify how AI-created works are protected and how responsibility is assigned. Additionally, as digital content continues to expand, there will be a growing focus on combating piracy, copyright infringement and unauthorized use of digital assets. Enforcement strategies may increasingly leverage technology, such as AI tools, to monitor and detect IP violations online.
[Asia IP, IP Trends in 2025, 30 November 2024]
Meanwhile, those focused on the new IP hotbed that Ireland has become also see “likely developments during 2025” in “AI-Related IP Protection,” as including questions of “whether and how AI-generated works can be protected under IP law” are “likely to intensify” and “legislative developments in the EU and globally may provide further clarity” on ownership issues related to generative AI, as noted by one commentator (starting at 3:24) and here in writing, who went in to say that “2025 will undoubtedly be shaped by technological advances, evolving regulatory priorities, and shifts in global market dynamics.” Likewise, those concerned with managing IP assets worldwide similarly note that:
As AI technologies advance, the emergence of AI-generated content and inventions poses significant challenges for intellectual property (IP) management. One of the key concerns is determining the ownership and protection of such creations.
In traditional IP systems, ownership is typically attributed to human creators. However, with AI-generated content and inventions, the lines blur…
These questions raise complex legal and ethical issues that current IP frameworks are often ill-equipped to address.
To tackle these challenges, legal frameworks need to evolve to accommodate AI-generated IP.
This may involve establishing new criteria for determining ownership, updating copyright and patent laws, and developing mechanisms for fair attribution and compensation.
[Inspire IP, Top 10 Intellectual Property Challenges To Prepare For in 2025, 5/1/ 2024]
So, the need and the desire are widely stated. Indeed, as Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, noted in her 2025 Prediction:
2025 Prediction: In an increasingly global economy, AI challenges traditional notions of responsibility and ownership (including intellectual property), demanding a global framework that balances innovation, creativity, equity, and protection. In 2025, we may see countries diverge on regulations and legal frameworks, highlighting the need for international cooperation and a harmonized approach.
Calls for such cooperation and approach, unfortunately, hint at a hesitancy to act alone.
Thus, these calls still seem to me too far from concrete steps or proposals to believe that this important issue will be resolved in 2025. Certainly, WIPO has dedicated time and attention to these issues beginning in 2019 and has now scheduled for April 2-3, 2025 its 11th session of the WIPO Conversation on intellectual property and frontier technologies like AI. While it is laudable, as WIPO reports, that “over the last 5 years, almost 12,000 people have participated in the WIPO Conversation, from 172 countries, including Member States, academia, IP professionals and enterprises,” we need to move from conversations to conclusions. The same can be said of the laudable bi-partisan efforts in Congress to educate themselves and the public on the important AI issues of the day, as reflected in the December 17, 2024, Congressional report on such issues. That report recognized, at 115, that “encouraging innovation and creativity by providing adequate IP protection for AI-assisted innovations and creative works is a key developing issue.” Indeed, that report affirmatively states that “[a]pplicable laws, regulations, and agency guidance on authorship/inventorship and the ability to obtain IP protection for AI-assisted creative works and inventions should be clarified to promote the development and application of powerful new AI tools for content creation and innovation while protecting human creators and innovators.” Report at 132 (emphasis added). Other commentators feel much the same way.
Despite that recognition, action in 2025 seems unlikely. The report itself states (at 134, emphasis added) under the title “Anticipatory Regulation” that it is too soon to act:
Although a range of IP-related issues have been raised by recent developments in AI technology and its applications, some are not yet ripe for government intervention. It will be vital to avoid overreach and understand the potential costs and benefits as much as possible. Any new IP-related legislation or regulations should target specific known issues or problems; tailor definitions, requirements, and consequences narrowly; reduce uncertainty rather than increase it; and focus on improving the ability of the private sector to innovate and creators to thrive.
Thus, even though the report again (at 136) notes that these AI rights and rules “should be clarified,” the report supports (in the collective Congressional mind) that notion with a “Key Finding” (at 135, with emphasis in original) calling for caution:
It is unclear whether legislative action is necessary in some cases, and a number of IP issues are currently in the courts.
Due to the rapidly shifting landscape and tremendous uncertainty of AI’s impacts on IP, Congress should exercise caution when considering legislation related to AI and IP.
The report thus suggests that Congress will for some time be waiting on the USPTO, Copyright Office, and the courts to further sort this out. As Oliver Roberts notes, “ In 2025, I do not expect Congress to pass any comprehensive federal legislation…,” and Cassandra Gaedt-Sheckter says “a comprehensive AI law would be a huge surprise,” and in fact the “Biggest Surprise 2025.”
When we do get around to addressing these issues concretely, we must remain open to new definitions and solutions and must avoid the desire to cram protection into some existing understanding of patent or copyright or to sensationalize the protection as requiring non-human authorship or inventorship. Just as photographers became acknowledged copyright owners without requiring them to have built the camera or developed the film, there is a place in the recognized creative ownership spectrum for the humans who deploy the new AI tools at their disposal. As noted here before, in the past “folks [have] stepped back to ask how to protect and incent the creation of works of scientific and economic importance, even if they did not fit neatly into then-present standards on patenting and copyrightability. The same conversation should occur for works based on, or assisted by, artificial intelligence. The conversation should focus on establishing the right, new protections for generative AI-assisted works rather than on how old forms of protection may be stretched and twisted to cover such works. The economic imperatives are there, and we ought to take care not to be governed by old rules with such new technologies.”
Will Congress Nonetheless Resolve in 2025 Any Of The Deep Fake Questions That Abound?
Though I remain skeptical as to whether Congress will address big-picture ownership and protectability questions concerning AI any time soon, the deep fake aspects of AI do seem to be within Congressional sights these days. As we noted in June 2024, many legislators and regulators, in various of the United States and abroad, have focused on the proliferation of deep fakes in politics and elsewhere. This proliferation has only increased since that time, and it appears that this is an area in which the United States Congress may very well act in 2025.
When we wrote on the issue in June 2024, the focus was on electoral uses and misuses of deep fakes. Since then, we have seen an explosion of AI being used in phishing frauds in the US and overseas:
AI-Driven Scams and Social Engineering Will Surge [In 2025]
- “Pig butchering” scams and vishing: AI will enhance scams like “pig butchering” (long-term financial fraud) and voice phishing (vishing), making social engineering attacks harder to detect.
- Deepfakes and impersonation: Sophisticated AI-generated deepfakes and synthetic voices will enable identity theft, fraud, and disruption of security protocols.
[Lohrmann on Cybersecurity, The Top 25 Security Predictions for 2025]
As one commentator in India noted, that is sure to continue in this new year:
In 2025, scams won’t just knock on your door asking for OTPs or requesting you to click suspicious links — they will come straight to you, looking like people you know and trust. Whether it is a video call from your boss or an official-looking government app offering benefits, cybercriminals will use Artificial Intelligence (AI) and Deepfakes — manipulated videos or audio that appear real, to create lifelike traps. With convincing voices, realistic messages, and fake platforms, they will make it almost impossible to tell what’s real and what’s a scam.
US lawmakers are aware of these trends too and seem ready to address them.
In fact, the Take It Down Act, an anti-revenge porn bill, has unique bipartisan support, led by Texas Republican Ted Cruz and Minnesota Democrat Amy Klobuchar. The bill targets those deep fakes in which individual’s faces are superimposed through AI into pornographic videos and then posted on social media and elsewhere. This would be a first federal step against deepfakes, and it was on the verge of passing just before Christmas as part of the budget dealings sidetracked by a lack of support from President-elect Trump and by social media attacks from Elon Musk. Despite that setback, it would only have made it into the original package after “it received sign-off from all of the key leaders in the House and Senate.” That seems to bode well for its reintroduction and possible passage in 2025, perhaps along with related legislation like the Defiance Act, “a similar bill that allows victims to take civil action against deepfake creators.”
The notion that action on these AI matters may move more quickly is further bolstered by the recent bipartisan Congressional report and related industry commentary. I say that because its somewhat hesitant conclusion as to AI issues more generally is offset by a more specific, separate conclusion as to deep fakes, wherein it leaves behind the “uncertainty” language in its more general AI conclusions in favor of describing deep fakes (on 136) as a “real and current problem”:
Recommendation: Appropriately counter the growing harm of AI-created deepfakes. The proliferation of deepfakes and harmful digital replicas is a real and current problem. Although digital replicas and deepfakes have existed for many years, AI technology has vastly amplified the size of the problem by making high-quality, realistic replicas accessible to nearly anyone with little effort.
This follows on from a separate “Key Finding” on deep fakes (on 135) noting them to be “harmful applications of AI technology that are already in use today.” This conclusion, and the recent near passage of the Take It Down Act, suggest it is likely that federal deep fakes legislation will pass in 2025.
Will US Supreme Court Resolve Questions Concerning The Jurisdictional Impacts Of Amazon Selling Platforms?
After many, many years of relative dormancy on questions of personal jurisdiction over corporations, the US Supreme Court in 2014 decided Daimler AG v. Bauman, 571 U.S. 117 (2014), holding that the “paradigm” forums in which corporations are “essentially at home” under the Court’s minimum contacts standard are a corporation’s principal place of business and place of incorporation. This created some question as to whether a defendant corporation remained susceptible to personal jurisdiction under specific jurisdiction analysis in previous questions, or only to personal jurisdiction generally in the corporation’s principal place of business and place of incorporation.
These notions were further complicated by the Supreme Court’s 2017 decision in a patent venue case:
In May 2017, the U.S. Supreme Court issued arguably the most important patent decision in several years, TC Heartland v. Kraft Foods Group Brands, which overturned the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)’s longstanding precedent regarding where proper venue lies in patent infringement cases. The venue statute specifically applicable to patent infringement lawsuits requires plaintiffs to file: (1) in the judicial district where the defendant “resides,” or (2) “where the defendant has committed acts of infringement and has a regular and established place of business.” [quoting 28 USC §1400] Since 1990, the Federal Circuit –the court with exclusive, nationwide jurisdiction over most patent appeals – had interpreted “resides” in such a manner that allowed domestic corporations to be sued for patent infringement wherever they are subject to a court’s personal jurisdiction. For nearly 30 years, plaintiffs relied on this interpretation to “forum shop” and sue domestic corporations in almost any federal district court in the country, often strategically choosing districts where judges and juries have reputations as being favorable to patent owners. In TC Heartland, a unanimous Supreme Court reversed the Federal Circuit, concluding that a domestic corporation accused of patent infringement “resides” only in its state of incorporation. The opinion has had a measurable impact on the patent litigation system by shifting patent suits away from federal district courts that have handled the vast majority of infringement complaints to other judicial districts. In addition, TC Heartland has spurred litigation and questions over several venue-related issues that were not addressed in the opinion. Because of TC Heartland’s effect on the patent litigation landscape, patent venue law is currently in flux and subject to future alterations by courts and possibly by Congress.
[Congressional Research Service, Legal Sidebar: Where Can Corporations Be Sued for Patent Infringement? Part I, February 20, 2018]
Now the issues of jurisdiction arise, as one commentator has noted, in Snap Power v. Lighting Defense Group (LDG), a case decided by the Federal Circuit with a cert. petition now pending before the US Supreme Court, and scheduled to be addressed at the January 10, 2025 conference.
The interesting aspect of Snap Power is that it is a case initiated by the alleged infringer, a Utah company that seeks a declaratory judgment of non-infringement from a federal court in its home state. The defendant patentee, LDG, is a Delaware company with a principal place of business in Arizona. The parties agreed that Utah did not have general jurisdiction over LDG, but Snap Power contended that specific jurisdiction existed because the allegedly infringing activity that LDG had noted in a cease-and-desist letter sent from LDG’s business in Arizona (and received by Amazon in Washington) could implicate Snap Power conduct in Utah. Surprisingly, LDG’s cert. petition does make any argument that it is a defendant in a patent infringement-related matter outside any district in which it resides. It also makes no analogy to 28 USC §1400 or to TC Heartland.
Instead, LDG presents the case as one involving personal jurisdiction rather than venue, and notes in its cert. petition that it reflects “an intractable split between courts applying Walden’s defendant-focused minimum-contacts test and courts still embracing Calder’s so-called ‘effects test.’” In this case, Snap Power was selling its products on an Amazon platform, and LDG wrote to Amazon, a non-party to the case, in Washington to complain. Because the effects of any decision by Amazon to bar Snap Power products from the platform would have an effect on Snap Power in Utah, the Federal Circuit found specific jurisdiction to exist. Therefore, it overturned the lower court’s dismissal of the action.
These are interesting questions, especially since “IP complaints on Amazon have skyrocketed in recent years.” In fact, in a recent single-year period, “Amazon received over 2.5 million IP infringement reports from brand owners.” Knowing the rules of where one can sue will be important ones to resolve, and it is an issue capable of resolution in 2025, indeed by July of 2025 if the Supreme Court grants cert in this case.
Will We Resolve In 2025 Questions Of What Intellectual Property Will Look Like Two-Plus Decades Later?
In my research for this piece, I came upon an interesting 2001 article by Debora Halbert entitled Intellectual Property In 2025, and, of course, I could not resist. I was fascinated with what predictions from decades ago were accurate, and which were not, where we had exceeded our expectations, and where we had fallen short. Having lived previously through both 1984 (and having read the similarly numerically-named novel) and 2001 (and having seen its eponymous space odyssey film), yet not having gone back to grade either Orwell or Kubrick, this ability to review Halbert seemed like a chance I should not also pass up.
First, let’s look at some late 2000/early 2001 predictions concerning the next two and half decades of intellectual property matters that Halbert seems to have gotten right. For instance, she correctly predicted (on page 28) that there would be a backlash against the monopolies (albeit limited) that intellectual property law creates because those “rights have become too restrictive, allowing for the privatization of culture and ultimately leading to the stifling of creative energy.” Any number of my own pieces here on fair use have raised just such issues, well after 2001, such as this one on pastiche in 2017, another on mash-ups in 2018, and two on characters projected into new settings in 2018 and 2020. Likewise, she correctly foresaw (at 31) in 2001 that the intervening years would see the “increasingly common trend of outsourcing” IT functions from the US to skilled workers in India. Finally, she also correctly predicted (at 41) that a central part of governmental function in “the new information economy” would be “enforce[ing] intellectual property laws both domestically and internationally against ‘pirates’ and ‘rogue’ states.” Not a bad trio of predictions.
There are other late 2000/early 2001 predictions concerning the next two and half decades of intellectual property matters on which Halbert was not quite as close to the mark. For instance, she thought (as noted at 40-41) that a “substantial portion of the US population” would be “disenfranchised by the information age” since in 2025 “media conglomerates were able to exercise control over the types of information most people could access via their computers.” While some, especially around the 2020 election bemoaned the filtering effect they claimed that “big tech” took as to social media interfering with the election that year, by 2024 it was clear that social media’s myriad of outlets and alternatives meant that there were virtually no limits on the sorts of information (accurate or not) that motivated individuals could access on their computers and smartphones. (In fact, failing to predict the advent of mobile/smartphones, social media, and AI is perhaps the most telling omission here, as those advances, as much as any, have impacted our world and its IP). Likewise, she foresaw (on page 29) a scenario in which “between 2000 and 2025, the US moved from a net producer of intellectual property products to a net consumer,” which has not occurred, with the US as of 2023 still exporting roughly 2.5 times as much IP as it imports. Finally, while correctly predicting the engineering and software aspect of Indian ascendence over the last twenty-plus years, Ms. Halbert was too optimistic in predicting (at 31) that “[b]y 2008 India [would] ha[ve] a $50 billion hardware industry.” In 2024, the Indian hardware industry was “estimated at USD 19.77 billion in 2024, and is expected to reach USD 27.86 billion by 2029, growing at a CAGR of 7.10% during the forecast period (2024-2029).” Nice growth, but well under the 2001 prediction that called for almost double that in one-fourth of the time.
Halbert’s efforts might inspire some to predict the state of intellectual property in 2050. But I have neither her futurist vision nor chronicling courage. I’ll simply admire, and critique, her effort.
Conclusion: I am happy with the three, tentative, will-it-or-won’t-it-happen-this-year notions put forth above, and with showing what Halbert did and did not correctly predict twenty-odd years ago for this coming year. (That being said, if any readers want to send me their 2050 predictions, feel free. Otherwise, write me at the end of 2025 to praise or punish me for the accuracy of my predictions here.) Happy New Year!