Womble Perspectives

Potential Pitfalls and Best Practices In Using AI Tools to Generate Code

• Womble Bond Dickinson • Season 1 • Episode 1

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In this episode, we dive into the potential pitfalls and legal implications of using generative AI tools like ChatGPT and Copilot. We explore the recent incidents of corporate-secret leaks involving ChatGPT at Samsung, where confidential source code information was inadvertently disclosed. We also discuss the class action lawsuit against GitHub, Microsoft, and OpenAI, alleging that Copilot pirated software without giving credit to original authors. Additionally, we explore the intersection of AI and patents, discussing a hypothetical scenario where an inventor uses ChatGPT to enhance a product idea and the implications it has on patentability. Join us as we navigate the legal and pragmatic questions surrounding AI tools, disclosure of proprietary information, patentability, and intellectual property rights.

Read the full article here: https://www.womblebonddickinson.com/us/insights/alerts/potential-pitfalls-and-best-practices-using-ai-tools-generate-code

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Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.

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Artificial intelligence has been a trending topic since the introduction of generative AI tools like ChatGPT, which was created by OpenAI, and Copilot and OpenAI Codex, which are tools that use generative AI to write computer code. With so much potential to explore, users have been testing the limits of AI in the workplace to see where the benefits end and the consequences begin.  

Recently, Samsung was hit with three instances of confidentiality breaches involving ChatGPT. Semiconductor engineers had used the tool twice to optimize code, while an employee used it to summarize meeting notes. However, since ChatGPT retains user input data for machine learning, Samsung's confidential information was inadvertently disclosed to OpenAI. Another potential issue involving generative AI is highlighted in a newly filed class action suit against GitHub, Microsoft, and OpenAI. The complaint alleges that Copilot (GitHub's AI-powered coding assistant) has pirated software that can be traced back to open-source repositories or licensees, using data from publicly accessible repositories of code stored on GitHub without providing proper credit to the original authors.  

 While this doesn't necessarily equate to copyright infringement, the complaint is seeking a permanent injunction to ensure GitHub modifies Copilot to avoid producing uncredited work in the future. A hypothetical put forth by a leading patent blog examines another potential issue involving generative AI and patents. In the scenario, an inventor uses ChatGPT to expand on a new product idea, including detailed designs, that is ultimately patentable in combination with ChatGPT's input. These cases and hypothetical examples raise several important legal and practical questions:

  • Does using generative AI count as disclosure of confidential information?  
  • How does generative AI differ from traditional search engines or other specialized tools like online legal research?  
  • Could AI tools create invalidating prior art that disrupts the patentability of otherwise patent-worthy ideas?  

To avoid disclosing intellectual property, how can AI users take steps to prevent revealing what they wish to keep hidden? And how can AI users avoid infringing on others' IP rights? For AI users interested in generating code, it's important to double-check the source through open-source licensing tools to determine the code's origins and licensing status.  

Companies that hire vendors or subcontractors to write code should include specific language allocating the risks of AI-based infringement or covenants, representations, and warranties concerning AI use. Additionally, before using AI tools, companies should confirm and preserve the confidentiality of any inputs and outputs that are trade secrets. While AI tools that generate code present an exciting potential, it's essential for users to pause and take precautionary measures to avoid the hidden risks of machine learning algorithms. For more information, please contact the WBD team. 

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