SIRI IS MY CLIENT New Hampshire Bar Association by jolinmilioncherie

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									                              SIRI IS MY CLIENT:
                     A First Look at Artificial Intelligence
                                and Legal Issues


                                                                                   well,	the	questions	introduced	by	Siri	will	only	grow	in	prominence	and	
                        By Attorney John Weaver                                    importance.	But	first,	it	is	useful	to	have	a	better	idea	of	what	Siri	is	and	
                                                                                   does.
    INTRODUCTION
                                                                                   A BRIEF HISTORY OF SIRI
    	 For	many	people,	artificial	intelligence	(“AI”)	is	HAL	from	2001:	
    A Space Odyssey,	KIT	from	Knight Rider,	Data	from	Star Trek,	or	Haley	         	 Like	the	internet	and	GPS,	Siri	is	the	product	of	DARPA,	the	Defense	
    Joel	Osment	from	(appropriately) A.I.	Artificial Intelligence.	In	light	       Advanced	 Research	Projects	Agency,	a	 Defense	 Department	 agency	
    of	this	image,	AI	is	frequently	relegated	to	the	science	fiction	section	of	   that	developments	new	technologies.	In	2003,	DARPA	entered	into	an	
    Netflix	and	forgotten.	                                                        agreement	with	SRI	International,	a	research	group	in	Menlo	Park	
    	 But	that	type	of	AI	only	represents	one	kind	–	strong	AI,	meaning	           California,	to	research	and	develop	a	“cognitive	assistant	that	learns	
    AI	that	matches	or	exceeds	human	intelligence	and	that	can	therefore	          and	organizes.”5		
    solve	any	problem	and	interact	in	any	social	situation	much	like	a	            	 In	2007,	SRI	incorporated	a	separate	entity,	Siri,	Inc.,	to	develop	a	
    person	would.	And	that	type	of	AI	is	pure	fiction	at	this	point.	However,	     commercial	application	for	the	AI	developed	in	the	DARPA	project.6	Siri,	
    weak	AI	is	another	matter	altogether.	Weak	AI	only	recreates	elements	         Inc.	received	venture	capital	backing	and	eventually	released	a	virtual	
    of	human	intelligence	in	a	computer.	We	interact	with	weak	AI	all	the	         personal	assistant	application	for	the	iPhone	in	February	2010.7	In	April	
    time	–	Google,	Global	Positioning	System	(“GPS”)1,	video	games,	etc.	          2010,	Apple,	Inc.	bought	Siri,	Inc.8	When	Apple	released	the	iPhone	4S	in	
    Any	machine	or	software	that	is	able	to	follow	simple	rules	to	replicate	      October	2011,	Siri	was	pre-installed	as	an	all-purpose	virtual	assistant,	
    human	intelligence	qualifies.	                                                 not	merely	as	an	app.
    	 Recently,	we	have	seen	rapid	advances	in	weak	AI.	Famous	examples	           	 Siri	is	not	just	a	virtual	personal	assistant.	It	has	both	speech	input	
    of	this	development	are	Deep	Blue,	the	chess	master	machine,	and	Wat-          and	speech	output.	Users	can	speak	to	it	and	receive	spoken	responses.	
    son,	the	Jeopardy	master	machine.	But,	in	a	sense,	those	examples	are	         The	extent	of	its	interaction	with	the	iPhone	4S	and	the	Internet	is	fairly	
    just	as	fantastical	as	HAL	and	KIT.	Hardly	anyone	interacts	with	machines	     extensive.	Ask	Siri	about	the	weather,	and	Siri	will	give	you	a	short	sum-
    like	that.	                                                                    mary	of	the	weather	forecast	where	you’re	located.	Ask	Siri	to	tell	your	
    	 The	first	major	mass	market	product	to	change	that	is	Siri,	the	             husband	you	are	running	late,	and	Siri	will	send	a	text	message.	Ask	
    “intelligent	personal	assistant	that	helps	you	get	things	done	just	by	        Siri	to	schedule	lunch	with	your	mom	next	Friday,	and	Siri	will	update	
    asking.”2	Siri	is	the	first	commercially	available,	advanced	weak	AI.	By	      your	calendar	and	give	you	verbal	confirmation.	Siri	does	not	process	
    “advanced	weak	AI,”	I	mean	weak	AI	that	can	recreate	elements	of	hu-           speech	input	solely	on	your	phone.	Rather,	the	software	send	commands	
    man	intelligence	through	human-like	interaction.3	This	distinguishes	          through	a	remote	server,	so	it	is	necessary	for	users	to	be	connected	to	
    it	from	other	popular	examples	of	weak	AI	like	Google	–	in	their	natural	      Wi-Fi	or	carrier	service	(Verizon,	AT&T,	etc.).9	
    setting,	humans	don’t	type	questions	and	requests	to	each	other.4	             	 The	actual	process	Siri	uses	to	translate	your	words	into	action	–	
    	 This	article	looks	at	a	few	of	the	legal	issues	related	to	Siri,	focusing	   “breath	to	bytes”	–	represents	an	impressive	achievement	of	internet	
    on	intellectual	property	and	liability	issues.	What	happens	when	Siri	         technology.	Smart Planet	described	how	Siri	responds	to	a	user	request	
    creates	something	new	that	has	commercial	value?	What	happens	when	            to	send	a	text	to	“Erica:”
    reliance	on	a	Siri	search	results	in	property	or	bodily	damage?	With	the	      	 The	sounds	of	your	speech	were	immediately	encoded	into	a	compact	
    pending	developments	in	weak	AI,	which	I’ll	address	in	this	article	as	              digital	form	that	preserves	its	information.



	      	 6		                                                   New Hampshire Bar Journal                                                    Winter 2012
	    The	signal	from	your	connected	phone	was	relayed	wirelessly	               successful	and	profitable	media,	and	once	there’s	real	money	involved,	
     through	a	nearby	cell	tower	and	through	a	series	of	land	lines	            the	question	of	who	owns	the	copyright	to	a	Siri	response,	and	potential	
     back	to	your	Internet	Service	Provider	where	it	then	communicated	         royalties	related	to	its	commercial	use,	becomes	more	important.
     with	a	server	in	the	cloud,	loaded	with	a	series	of	models	honed	to	
     comprehend	language.                                                             A. Sampling
	 Simultaneously,	your	speech	was	evaluated	locally,	on	your	device.	A	         	 Sampling	in	various	forms	of	popular	music	–	most	notably	hip	
     recognizer	installed	on	your	phone	communicates	with	that	server	          hop	and	pop	–	has	been	a	hotly	contested	issue	in	copyright	law.	As	the	
     in	the	cloud	to	gauge	whether	the	command	can	be	best	handled	             Sixth	Circuit	noted,	“Advances	in	technology	coupled	with	the	advent	
     locally	—	such	as	if	you	had	asked	it	to	play	a	song	on	your	phone	        of	the	popularity	of	hip	hop	or	rap	music	have	made	instances	of	digital	
     —	or	if	it	must	connect	to	the	network	for	further	assistance.	(If	the	    sampling	extremely	common	and	have	spawned	a	plethora	of	copyright	
     local	recognizer	deems	its	model	sufficient	to	process	your	speech,	       disputes	and	litigation.”12	Copyright	disputes	involving	sampling	have	
     it	tells	the	server	in	the	cloud	that	it	is	no	longer	needed:	“Thanks	     resulted	in	litigation	concerning	artists	as	diverse	as	Roy	Orbison,13	the	
     very	much,	we’re	OK	here.”)                                                Beastie	Boys,14	and	George	Clinton,	Jr.15	George	Clinton’s	music,	in	fact,	
	 The	server	compares	your	speech	against	a	statistical	model	to	               is	responsible	for	one	of	the	largest	allegations	of	copyright	infringement,	
     estimate,	based	on	the	sounds	you	spoke	and	the	order	in	which	            as	entities	holding	copyrights	to	his	music	filed	500	counts	against	ap-
     you	spoke	them,	what	letters	might	constitute	it.	(At	the	same	time,	      proximately	800	defendants	for	using	portions	of	his	recordings	and	
     the	local	recognizer	compares	your	speech	to	an	abridged	version	of	       music	without	authorization	in	2001.16	In	these	cases,	the	key	dispute	
     that	statistical	model.)	For	both,	the	highest-probability	estimates	      was	between	the	owner	of	a	musical	composition	or	sound	recording	and	
     get	the	go-ahead.                                                          another	person	who	sampled	that	music	or	sound	to	create	otherwise	
                                                                                new	media.	17
	 Based	on	these	opinions,	your	speech	—	now	understood	as	a	                   	 With	Siri,	a	user	could	experiment	with	Siri’s	speech	output	in	order	
     series	of	vowels	and	consonants	—	is	then	run	through	a	language	          to	create	an	amusing	or	interesting	sound	byte,	record	that	sound,	and	
     model,	which	estimates	the	words	that	your	speech	is	comprised	of.	        alter	it	using	Auto-Tune	into	commercially	successful	media	(e.g.,	song,	
     Given	a	sufficient	level	of	confidence,	the	computer	then	creates	a	       commercial,	etc.).	Under	that	scenario,	it	appears	that	this	creator	would	
     candidate	list	of	interpretations	for	what	the	sequence	of	words	in	       own	the	copyright	to	the	new	media.	However,	the	law	is	not	established	
     your	speech	might	mean.                                                    on	this	point.
	 If	there	is	enough	confidence	in	this	result,	and	there	is	—	the	
     computer	determines	that	your	intent	is	to	send	an	SMS,	Erica	                   B. Ownership of Intellectual Property from AI
     Olssen	is	your	addressee	(and	therefore	her	contact	information	           	 Section	201(a)	of	the	Copyright	Act	states	that	“Copyright	in	a	
     should	be	pulled	from	your	phone’s	contact	list)	and	the	rest	is	          work	protected	under	this	title	vests	initially	in	the	author	or	authors	of	
     your	actual	note	to	her	—	your	text	message	magically	appears	             the	work.”	The	Supreme	Court	has	stated	that,	“As	a	general	rule,	the	
     on	screen,	no	hands	necessary.	If	your	speech	is	too	ambiguous	at	         author	is	the	party	who	actually	creates	the	work,	that	is,	the	person	who	
     any	point	during	the	process,	the	computers	will	defer	to	you,	the	        translates	an	idea	into	a	fixed,	tangible	expression	entitled	to	copyright	
     user:	did	you	mean	Erica	Olssen,	or	Erica	Schmidt?10                       protection.”18	But	this	idea	is	in	flux	as	an	increasing	number	of	weak	
	 In	short,	Siri	depends	on	sophisticated	weak	AI	in	the	phone	software	        AI	computer	programs	like	Siri	are	able	to	produce	original	music,	text,	
interfacing	with	sophisticated	weak	AI	in	the	Internet	cloud	to	create	a	       and	sound.19	You	can	find	books	of	computer-generated	poetry,20	novels	
user-friendly	advanced	weak	AI	program.	By	relying	on	central	proces-           written	by	a	hacked-Macintosh	that	draws	inspiration	from	Jacqueline	
sors	over	the	Internet,	Siri	is	able	to	improve	the	more	people	use	it.	Siri	   Susann,21	and	CDs	of	music	composed	by	an	autonomous	program.22	
collects	data	from	users	and	analyzes	that	data	to	improve	its	services.11	     When	Siri	says	something	new,	who	is	the	“person”	who	owns	that	
That	represents	a	lot	of	automation	interacting	with	real-world	people,	        copyright?	
which	can	result	in	legal	issues	we	haven’t	seen	before.                        	 Ralph	D.	Clifford23	attempted	to	answer	this	question,	albeit	while	
	 Siri	represents	a	nascent	challenge	to	a	number	of	long-held	legal	           examining	intellectual	property	created	through	human-computer	
models.	I	say	nascent	because	you	have	to	follow	Siri’s	functions	to	a	         partnerships	rather	than	intellectual	property	created	by	Siri	specifically.24	
logical	extreme	in	order	to	get	to	the	challenge	in	fields	like	intellectual	   Clifford	examines	the	potential	for	computers	and	machines	to	develop	
property	and	liability.	However,	there	are	new	technologies	already	in	         copyrights,	deciding	that	there	is	a	spectrum	of	human-machine	interac-
development	that	will	see	commercial	sale	in	the	not	too	distant	future	        tion.	On	one	end	of	the	spectrum,	there	is	intellectual	property	developed	
that	will	put	these	challenges	front	and	center.                                by	machines	that	are	programmed	and	guided	by	humans;	copyrights	
                                                                                from	those	pairings	are	properly	owned	by	the	programmers.	25	On	the	
     The Sounds of Siri – Who Owns the Copyright?                               other	end	of	the	spectrum	are	machines	that	are	capable	through	their	
	 The	words,	sentences,	and	ideas	expressed	by	Siri	have	little	value	          programming	of	creating	new	media	with	little	to	no	further	interaction	
as	recorded	media	–	for	now.	But	Siri	poses	the	potential	to	contribute	to	     with	people;	copyrights	from	those	machines	enter	into	public	domain,	
                                                                                under	Clifford’s	analysis.26	He	relies	on	the	Supreme	Court’s	reasoning	


    Winter 2012                                               New Hampshire Bar Journal                                                          	      	 7		   
    from	Feist Publications, Inc. v. Rural Telephone Service, Co.:	“The	sine         and	music	that	is	really	excellent.	It	seems	to	me	that	these	composers	
    qua non	of	copyright	is	originality.	To	qualify	for	copyright	protection,	       should	feel	a	little	less	smug	and	more	defensive	about	their	position.”33	
    a	work	must	be	original	to	the	author.”27                                        Although	he	has	made	no	public	comments	regarding	the	copyright	of	
    	 Clifford	extended	this	reasoning,	explaining	that	a	machine	that	is	           Emily’s	first	CD,	published	by	Centaur	Records	in	2010,	it	can	be	safely	
    programmed	to	create	creativity	on	its	own	does	not	warrant	copyright	           assumed	that	Cope	kept	any	royalties	as	Emily’s	programmer.
    protection	because	“no	one	derives	rules	for	the	computer	to	control	its	
    creativity;	rather,	using	its	learning	algorithm	and	based	on	the	training	            C. Who Should Own Siri-Created Media and
    examples	it	is	given,	it	develops	rules	on	its	own.	This	learning	is	done	                  Similar Copyrights
    independently	of	its	user.”28	And	in	fact,	this	sounds	strikingly	similar	to	    	 Cope	and	Emily	demonstrate	why	someone	has	to	own	the	copyright	
    Siri’s	ability	to	learn	to	operate	better	the	more	people	use	it.	As	Clifford	   associated	with	media	produced	by	computers,	machines,	or	programs	
    asks,	“who	then	can	claim	a	copyright	in	the	expressive	works”	created	          like	Siri.	When	there	is	money	involved,	the	public	domain	is	not	a	
    solely	by	a	computer?29	Clifford	answers	his	own	question:	“The	claim	           realistic	option,	as	someone	(likely	many	people)	will	claim	ownership	
    of	the	user	of	the	machine	seems	highly	dubious.	The	user	was	not	the	           and	do	so	with	compelling	arguments.	Similarly,	without	the	potential	
    originator	of	these	expressions	as	no	specific	creative	effort	was	exerted	      for	return	on	an	investment,	programmers	and	investors	will	not	seek	
    by	the	user.”30	                                                                 to	develop	technologies	that	develop	creativity.	
    	 I	suspect	that	Clifford	is	mistaken	regarding	the	intellectual	property	       	 Although	no	law	speaks	directly	to	this	issue	now,	as	weak	AI	is	
    developed	by	programs	like	Siri.	Nature	and	the	law	abhor	a	vacuum,	             more	commercially	available,	Congress	or	a	court	will	need	to	address	
    which	is	effectively	what	the	public	domain	is	for	intellectual	property.	       it	in	the	near	future.	From	a	public	policy	standpoint,	it	would	be	bet-
    One	of	the	reasons	why	Siri	is	so	interesting	is	that	it	is	the	first	com-       ter	for	Congress	to	address	it,	so	there	is	unanimity	throughout	the	
    mercially	available	sophisticated	weak	AI.	Although	Siri	is	likely	on	the	       country,	without	divisions	in	circuits.	Assuming	that	there	will	be	more	
    end	of	Clifford’s	spectrum	where	intellectual	property	is	owned	by	the	          mass-marketed	sophisticated	weak	AI	like	Siri,	granting	ownership	of	
    human	interacting	with	the	AI,	that	spectrum	breaks	down	when	the	               media	created	with	mass-market	AI	to	the	users	and	artists,	rather	than	
    AI	is	available	to	a	mass	market.	Clifford	assumes	that	the	programmer	          the	programmers,	will	stimulate	greater	creative	development	of	media	
    (the	person	who	creates	the	machine),	the	user	(the	person	who	uses	the	         using	that	AI.	Additionally,	the	users	and	artists	are	closer	to	the	“author”	
    machine	to	create	output),	and	the	artist	(the	person	who	makes	new	             of	such	media	as	currently	contemplated	under	US	copyright	law.
    media	with	the	machine's	output)	are	all	the	same	person.	Beginning	             	 But	Clifford’s	concern	is	a	legitimate	one.	Should	traditional	copy-
    with	Siri,	that	is	not	necessarily	the	case.                                     right	and	patent	protection	be	granted	to	the	writer	of	code	that	produces	
    	 Rather,	if	there	is	an	owner	to	the	sounds	Siri	creates,	it	is	likely	         creative	products	largely	independent	of	human	direction?	Emily	Howell	
    either	one	of	or	a	combination	of	the	following	parties:                         already	produces	classical	music;	there	is	no	reason	to	believe	a	program	
    •	 The	artist	who	creates	the	new	media	using	the	sample	of	Siri’s	              that	produces	commercially	successful	pop	music	will	not	be	developed	
       speech	output;                                                                sometime	in	the	near	future.	Similarly,	there	are	AI	programs	that	write	
                                                                                     full	articles	regarding	sporting	events;34	there	is	no	reason	to	believe	
    •	 The	user	who	experimented	with	Siri	in	order	to	create	the	speech	
                                                                                     a	program	that	produces	commercially	successful	novels	will	not	be	
       output	(this	could	be	the	same	person	as	the	artist);	or
                                                                                     developed	in	the	not-so-distant	future.	Perhaps	there	should	be	a	line	
    •	 Apple,	which	owns	the	Siri	source	code.                                       drawn	between	private	AI	like	Emily	Howell	and	marketed	AI	like	Siri,	
                                                                                     with	programmers	receiving	different	copyright	protection	for	the	intel-
    Thus	far,	there	has	been	little	if	any	difference	between	these	three	par-       lectual	property	created	by	private	AI.	In	recognition	of	the	concerns	cited	
    ties	when	other	forms	of	weak	AI	have	created	new	copyrights.	When	              by	Clifford	for	properly	fostering	and	rewarding	human	creativity,	the	
    Scott	French	hacked	his	Macintosh	to	create	prose	reminiscent	of	Valley          copyrights	owned	by	the	programmers	of	such	programs	could	receive	
    of the Dolls,	he	programmed	the	computer	to	ask	him	questions	that	              a	limited	copyright	–	maybe	10	years	–	before	it	enters	into	the	public	
    would	permit	it	to	draft	appropriate	language	and	story.	When	David	             domain.35	Although	this	issue	seems	remote	now,	Siri	is	only	the	first	
    Cope	entered	into	an	agreement	with	Centaur	Records	to	release	a	CD	             product	in	an	increasingly	complex	line	of	weak	AI	products,	which	will	
    of	music	composed	by	the	program	he	named	“Emily	Howell,”	he	had	                make	issues	of	intellectual	property	ownership	more	important.
    written	the	Emily	Howell	program	and	provided	it	with	musical	inputs	
    to	analyze	before	it	wrote	new	music.                                                 Siri Made Me Do It – Liability for Siri’s Mistakes
    	 Cope	is	an	apt	example	because	his	Emily	Howell	program	is	the	                	 There	are	already	instances	in	which	accident	victims	have	blamed	
    direction	that	weak	AI	is	going.	Emily	Howell	is	a	program	that	can	             weak	AI	–	most	notably	GPS	–	for	the	accident.	In	West	Yorkshire,	Eng-
    analyze	music	and	feedback	and	create	its	own	style.31	Cope	says	“I’ve	          land,	a	driver	followed	the	directions	provided	by	his	GPS	until	he	was	
    taught	the	program	what	my	musical	tastes	are,	but	it’s	not	music	in	the	        trapped	on	a	narrow	cliffside	path	and	the	police	had	to	tow	him	back	to	
    style	of	any	of	the	styles	–	it’s	Emily’s	own	style.”32	With	regard	to	other	    the	main	road.36	Despite	that	driver’s	attempts	to	blame	the	GPS	system,	
    human	composers,	Cope	says	that	they	“are	looking	at	a	competitor	–	             the	British	court	found	him	guilty	of	careless	driving.	
    a	virtual	composer	competing	in	the	same	arena	with	‘her’	own	style	             	 Although	there	is	limited	case	law	addressing	GPS	culpability	in	acci-


	      	 8		                                                     New Hampshire Bar Journal                                                    Winter 2012
dents,	it	is	not	far-	fetched	to	suggest	that	a	court	could	attribute	partial	or	   from	drivers	is	a	bad	idea.	If	that	decision	is	made,	by	a	court	or	legisla-
total	liability	to	a	GPS	system	in	some	instances.	Some	American	attorneys	         ture,	there	will	have	to	be	a	reflection	of	that	in	the	law.	One	option	is	to	
expect	that	development	sometime	in	the	near	future,	as	more	drivers	               try	to	retain	the	reasonable	person	standard	when	looking	at	potential	
depend	on	satellite	directions,	particularly	in	areas	where	they	do	not	            driver	negligence	in	car	accidents	involving	autonomous	cars.	But	a	
know	the	geography.37	That	dependence	will	increase	as	advanced	weak	               reasonable	person,	when	driven	by	an	autonomous	car,	is	likely	paying	
AI	in	GPS	improves	to	the	level	that	Siri	represents.	As	drivers	are	better	        little	attention	to	the	road.	As	autonomous	cars	become	more	popular,	
able	to	talk	directly	to	their	GPS	–	“There’s	a	traffic	jam	up	ahead	–	is	          that	attitude	will	only	increase.	Another	option	is	for	towns	or	states	to	
there	another	way	around	the	next	few	intersections?”	–	they	will	rely	on	          designate	areas	where	drivers	will	be	held	to	traditional	negligent	driver	
those	devices	more	and	more.	By	mimicking	actual	human	interaction,	                standards.	In	response,	drivers	could	choose	to	assume	control	of	the	
GPS	devices	increase	the	likelihood	that	a	court	will	attribute	partial	or	         car	from	the	automatic	driver	or	take	their	chances	with	the	autonomy	
total	liability	to	a	GPS	system	because	it	becomes	more	reasonable	for	             engaged.
drivers	to	rely	on	them.                                                            	 And	there	is	also	the	argument	that	autonomous	cars	–	as	well	as	
	 Siri	invites	a	similar	reliance	–	it	is	programmed	to	accumulate	                 other	forms	of	autonomous	programs	and	machines,	like	Siri’s	calendar	
user	data	through	the	Internet	cloud	where	it	operates,	learning	more	              function	–	are	in	fact	more	reliable	than	human	operators.	There	are	
about	users	as	they	ask	questions	and	make	requests.	By	design,	Siri	tries	         no	statistics	for	this	hypothesis,	and	there	won’t	be	until	autonomous	
to	make	itself	more	indispensable	with	each	user	interaction.                       cars	are	available.	But	it	should	surprise	no	one	that	a	machine	capable	
	 So	consider	this	scenario:	A	user	is	visiting	an	unfamiliar	city.	He	has	         of	focusing	on	the	task	of	driving	is	safer	than	a	human	being	texting,	
an	appointment,	he	is	lost,	and	he	asks	Siri	the	fastest	route	to	the	site	         talking	on	the	phone,	or	trying	to	find	the	last	French	fry	in	the	Mc-
of	his	meeting.	Siri	provides	him	with	directions,	but	does	not	mention	            Donald’s	bag	while	behind	the	wheel.	With	this	possibility	in	mind,	we	
some	of	the	potential	dangers	associated	with	that	route.	If	the	route	takes	       might	want	to	use	Siri	as	a	prompt	to	examine	the	aspects	of	our	lives	
the	user	through	an	area	with	a	high	crime	rate,	and	he	is	assaulted,	              that	could	be	improved	by	autonomous	machines	and	begin	developing	
mugged,	etc.,	what	liability	does	Siri	(and	by	extension,	Apple)	have	for	          legal	frameworks	to	encourage	weak	AI	in	those	areas.
those	damages?	
	 This	is	not	an	easy	question	to	answer,	and	any	decisions	would	                  CONCLUSION
depend	on	a	court’s	analysis	of	the	user’s	actions.	Did	the	user	behave	            	 Siri	is	a	marvelous	piece	of	technology.	Most	consumers	have	never	
reasonably?	Should	the	user	have	identified	the	dangerous	situation?	               had	access	to	sophisticated	weak	AI	like	it	before.	As	impressive	as	it	is,	
Did	the	user	have	sufficient	information	to	deviate	from	Siri’s	directions?	        it	represents	only	the	beginning	of	the	next	wave	of	technology.	Devices	
Apple	–	and	any	other	manufacturer	of	weak	AI	–	could	argue	that	the	
user	was	contributorily	negligent	in	causing	an	accident	if	he	failed	to	                         New Hampshire’s leading Medical Malpractice firm.
act	reasonably	or	exposed	himself	to	unreasonable	risk	of	harm.38
	 Any	court	considering	the	question	of	reasonableness	in	the	scenario	
described	above	will	have	to	consider	Siri’s	design.	It	is	programmed	to	                    Abramson, Brown & Dugan
become	more	useful.	With	that	goal	in	mind,	isn’t	it	reasonable	for	users	              is a plaintiffs’ trial firm recognized for its advocacy
to	increase	their	reliance	on	Siri	as	they	use	it	more?	This	is	particularly	           on behalf of New Hampshire families. With extensive

true	where	users	are	asking	questions	concerning	topics	of	which	they	                  experience in medical malpractice and other complex
                                                                                        personal injury litigation, the firm has won a number
know		little	–	directions	in	a	new	geographic	location,	recipes	for	cooking,	           of cases which have set precedents in state law.
lesson	in	carpentry,	etc.	The	interface	matters	in	this	analysis,	as	well.	It	          Abramson, Brown & Dugan has won more medical             Working together for your client

is	more	reasonable	to	rely	on	a	device	that	responds	to	conversational	                 malpractice verdicts and settlements in New Hampshire
                                                                                        than any other firm.
questions	than	on	a	device	that	requires	a	cumbersome	keyboard.
	 As	should	be	clear	by	now,	there	is	no	easy	answer	to	this,	but	Siri	
                                                                                                                                                 1819 Elm Street, Manchester, NH
is	only	the	first	of	many	new	technological	developments	that	will	                                                                               603-627-1819 www.arbd.com

require	a	re-examination	of	how	we	determine	and	assign	liability.	For	                                                                                 Referral fees honored


example,	numerous	American	companies	–	including	General	Motors	
and	Google	–	have	spent	considerable	time	and	resources	developing	
an	autonomous	car.39	Current	prototypes	are	already	traveling	–	under	
supervision	–	along	highways	at	70	miles	per	hour	and	through	well-
populated	downtown	areas	in	selected	states;	Alan	Taub	of	General	Motors	
predicts	that	autonomous	cars	will	be	commercially	available	by	2020.40	
While	torts	law	has	assumed	the	validity	of	driver	negligence	since	the	
invention	of	the	automobile,	that	concept	could	soon	be	outdated,	like	
elevator	operator	negligence.	
	 Alternatively,	jurisdictions	could	decide	that	removing	all	culpability	



  Winter 2012                                                    New Hampshire Bar Journal                                                                         	      	 9		    
    will	connect	to	the	Internet,	learn	your	preferences,	and	perform	tasks	                               17.	 Although	17	USC	§	106	distinguishes	between	the	rights	held	by	the	owner	of	a	musical	
                                                                                                           composition	copyright	and	those	held	by	the	owner	of	a	sound	recording	copyright,	that	distinc-
    for	you	with	more	utility	than	Siri	offers	now.	They	will	be	capable	of	                               tion	is	not	relevant	to	this	article.
    producing	new	sounds,	music,	and	texts	with	more	creativity	and	origi-                                 18.	 Community for Creative Non-Violence v. Reid,	490	U.S.	730,	737	(1989).
    nality	than	Siri	offers	now.	It	is	important	to	keep	that	in	mind	when	                                19.	 See	Melville	B.	Nimmer	&	David	Nimmer,	Nimmer on Copyright,	§	5.01[A]	(2011).
    we	use	Siri.	The	artificial	intelligence	it	relies	on	will	appear	in	other	                            20.	 Racter,	The Policeman’s Beard is Half Constructed 	(1984).
    programs	and	machines,	forcing	us	to	change	many	of	our	legal	models.	                                 21.	 S.	French	&	HAL,	Just This Once	(1993).	The	Baltimore Sun	article,	“Hal	is	back,	and	
    The	two	discussed	here,	copyrights	and	liability,	are	just	the	beginning.	                             writing	best-sellers,”	published	on	July	8,	1993	explores	this	book	further.
    Even	seemingly	unrelated	areas	of	law,	like	land	use,	will	be	affected	–	                              22.	 The	program	referred	to	is	“Emily	Howell,”	written	by	a	UC	Santa	Cruz	music	professor	
                                                                                                           named	David	Cope.	Cope	and	Emily	are	discussed	in	greater	detail	later	in	this	section.
    Towns	that	rely	on	limiting	the	number	of	employees	at	a	property	to	
                                                                                                           23.	 Clifford	is	a	professor	at	the	University	of	Massachusetts	School	of	Law.	Nimmer,	supra,	
    control	development	will	have	to	revise	their	zoning	ordinances	in	order	                              relies	on	him	as	an	expert	in	the	evolving	discussion	regarding	intellectual	property	produced	
    to	address	the	growing	number	of	businesses	that	hire	few	employees.	                                  by	AI.
    Autonomous	assistants,	like	Siri	but	bigger	and	smarter,	will	do	much	                                 24.	 Ralph	D.	Clifford,	“Intellectual	Property	in	the	Era	of	the	Creative	Computer	Program:	Will	
    of	the	work.                                                                                           the	True	Creator	Please	Stand	Up?”	71 Tul. L. Rev.1675 (1995).
                                                                                                           25.	 Id.,	at	1686-1694.
                                                                                                           26.	 Id.,	at	1694-95.
    ENDNOTES
                                                                                                           27.	 499	US	340,	345	(1991).
    Many	thanks	to	Jen	Finch	for	her	tireless	research	and	assistance.                                     28.	 Clifford,	“Intellectual	Property	in	the	Era	of	the	Creative	Computer	Program:	Will	the	True	
    1.	 The	term	“GPS”	will	be	used	throughout	this	article	to	refer	to	any	satellite	navigation	          Creator	Please	Stand	Up?”	at	1694,	omitting	citations.
    system.                                                                                                29.	 Id.,	at	1695.	Clifford	dismisses	the	idea	that	the	AI	itself	could	own	the	copyright,	at	least	
    2.	      Apple	Siri	FAQ.	http://www.apple.com/iphone/features/siri-faq.html.	Retrieved	1-31-12.        under	the	current	law.	Noting	that	the	“author”	of	a	work	owns	the	copyright	under	the	federal	
                                                                                                           Copyright	Act,	he	reviews	its	use	there	and	in	other	portions	of	the	U.S.	Code.	He	concludes	
    3.	 Although	there	are	GPS	devices	that	exhibit	advanced	weak	AI,	reviews	are	mixed	at	                that	“the	use	of	the	term	‘author’	in	the	Copyright	Act	implies	Congress	meant	a	human	author…
    best.	By	all	measures,	Siri’s	voice-interface	seems	superior	to	that	of	any	GPS	device.	On	top	        the	general	use	of	the	term	‘author’	in	the	U.S.	Code	reinforces	the	conclusion	that	Congress	
    of	that,	Siri’s	potential	for	ubiquity	distinguishes	it	from	GPS,	which	has	a	more	limited	function.   intended	the	term	to	mean	humans.”	Id.,	at	1682,	1684.	
    4.	 For	the	purposes	of	this	article,	texting,	instant	messaging,	emailing,	etc.	are	not	considered	   30.	 Id.
    part	of	man’s	“natural	setting.”
                                                                                                           31.	 Jacqui	Cheng,	“Virtual	composer	makes	beautiful	music	–	and	stirs	controversy.”	ars	
    5.	 John	Markoff.	“A	Software	Secretary	That	Takes	Charge,”	New York Times.	December	                  technical.	September	29,	2009.	http://arstechnica.com/science/news/2009/09/virtual-composer-
    13,	2008.	http://www.nytimes.com/2008/12/14/business/14stream.html?_r=1.	Retrieve	1-31-12.             makes-beautiful-musicand-stirs-controversy.ars.	Retrieved	2-2-2012.
    6.	 Timothy	Hay.	“Apple	Moves	Deeper	Into	Voice-Activated	Search	With	Siri	Buy.”	Wall                  32.	 Id.
    Street Journal Blog.	April	28,	2010.	http://blogs.wsj.com/venturecapital/2010/04/28/apple-moves-
    deeper-into-voice-activated-search-with-siri-buy/	Retrieved	1-31-12.                                   33.	 Id.
    7.	 	“Siri	Launches	Virtual	Personal	Assistant	for	iPhone	3GS.”	Press	Release,	SRI	Interna-            34.	 Farhad	Manjoo,	“Will	Robots	Steal	Your	Job?”	Slate.	September	27,	2011.	http://www.
    tional.	February	8,	2010.	http://www.sri.com/news/releases/020510.html.	Retrieved	on	1-31-12.          slate.com/articles/technology/robot_invasion/2011/09/will_robots_steal_your_job_4.single.html.	
                                                                                                           Retrieved	2-10-12.
    8.	      Hay,	“Apple	Moves	Deeper	Into	Voice-Activated	Search	With	Siri	Buy,”	supra.
                                                                                                           35.	 If	that	seems	too	short	a	period	of	time,	consider	this:	Forbes	magazine	estimated	JK	
    9.	 Jill	Duffy.	“What	is	Siri?”	PC Magazine.	October	17,	2011.	http://www.pcmag.com/ar-                Rowlings’	net	worth	to	be	approximately	$1	billion	7	years	after	Harry Potter	first	appeared	on	
    ticle2/0,2817,2394787,00.asp	.	Retrieved	on	2-1-12.                                                    bookshelves.
    10.	 Andrew	Nusca.	“Say	command:	How	speech	recognition	will	change	the	world.”	Smart	                 36.	 Chris	Brooke.	“’I	was	only	following	satnav	orders’	is	no	defence:	Driver	who	ended	up	
    Planet.	http://www.smartplanet.com/blog/smart-takes/say-command-how-speech-recognition-                teetering	on	cliff	edge	convicted	of	careless	driving.”	Daily Mail.	September	16,	2009.	http://www.
    will-change-the-world/19895?tag=content;siu-container.	Retrieved	2-7-12.                               dailymail.co.uk/news/article-1213891/Driver-ended-teetering-cliff-edge-guilty-blindly-following-
    11.	 Duffy.	“What	is	Siri?”,	supra.                                                                    sat-nav-directions.html.	Retrieved	2-2-12.
    12.	 Bridgeport Music, Inc. v. Dimension Films,	410	F.3d	792,	798-99	(6th	Cir.	2005).                  37.	 Eric	Sinrod.	“What’s	Next,	GPS	Liability?”	FindlLaw.	http://articles.technology.findlaw.
    13.	 Campbell v. Acuff-Rose Music,	510	U.S.	569	(1994)	(ruling	that	2	Live	Crew’s	use	of	              com/2008/Jan/15/11079.html.	January	15,	2008.	Retrieved	2-3-2012.
    Orbison’s	“Pretty	Woman”	constituted	fair	use).                                                        38.	 Martin	J.	Saulen.	“’The	Machine	Knows!’:	What	Legal	Implications	Arise	for	GPS	Device	
    14.	 Newton v. Diamond,	349	F.3d	591	(9th	Cir.	2003)	(ruling	that	the	Beastie	Boys	were	not	           Manufacturers	When	Drivers	Following	Their	GPS	Device	Instructions	Cause	An	Accident?”	
    liable	for	sampling	James	Newton’s	“Choir”	in	their	track	“Pass	the	Mic”).                             44	N.	Eng.	L.	Rev.	159,	189	(2010).
    15.	 Bridgeport Music,	supra	(ruling	that	NWA’s	sampling	of	a	guitar	chord	from	Clinton’s	“Get	        39.	 Tom	Vanderbilt.	“Let	the	Robot	Drive.”	Wired.	http://www.wired.com/magazine/2012/01/
    Off	You	Ass	and	Jam”	violated	the	copyright	on	that	song).                                             ff_autonomouscars/all/1.	January	12,	2012.	Retrieved	1-13-12.	
    16.	 Id.,	at	795.                                                                                      40.	 Id.




                                                                         Author
                                                                         Attorney John Weaver is a member of the Energy,
                                                                         Utilities, and Telecommunications Practice Group
                                                                         at McLane, Graf, Raulerson & Middleton. He com-
                                                                         ments on legal issues associated with artificial intel-
                                                                         ligence at The Law of Robots blog. He can be reached
                                                                         at (603) 628-1442 or john.weaver@mclane.com.



	        	 10		                                                                    New Hampshire Bar Journal                                                                         Winter 2012
                THe NH Bar aSSociaTioN New LawyerS commiTTee PreSeNTS...

                                                                         The Second Annual


                                                         Battle of
                                                       the Lawyers
      • Tickets $25                                                  April 17, 2012
      • $15 for Law students                           The Capital Center for the Arts • Concord, NH
      • $5 for high school                   Proceeds from this event go directly to the NH Bar Association’s Pro Bono Program
       students and teachers
                                            Social Hour 5:30 p.m. ~ Program begins at 6:30 p.m.
  Closing argument is perhaps the ultimate forum                               This inspiring program will include four talented
  for trial attorneys to showcase their skills as                              trial attorneys. Dean John T. Broderick, Jr. of
  determined advocates and gifted orators. As                                  the University of New Hampshire School of Law
  the percentage of cases resolved by settlement                               and former Chief Justice of the New Hampshire
  increases, many attorneys miss the opportunity to                            Supreme Court will serve as the evening’s emcee.
  witness – much less deliver – a truly great closing                          There will be plenty of time for socializing before
  argument.                                                                    the program, and the festivities will culminate
                                                                               with the crowning of an audience-selected
                                                                               champion.
                              members may register online at: nhbar.org/store/
                                            Non-members will need to pay using the form below.

                             Battle of the Lawyers Registration Form
  Please check all that apply.

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Winter 2012                                               New Hampshire Bar Journal                                              	      	 11		   

								
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