Bail bonds allow individuals to regain their freedom while awaiting trial, ensuring financial limitations do not limit access to justice. They also enable individuals to continue employment, care for children and family members, and maintain professional connections.
When setting bail, judges look at many factors, including a defendant’s criminal history, ability to flee (flight risk), and whether they will return for trial.
Pretrial Detention
In a typical case, the court will set bail for a defendant. The purpose of bail bonds Monroe County, PA, is to ensure that the defendant will appear for all court proceedings and abide by other conditions of release. Defendants can either pay a cash bond or put up property as collateral. If they fail to comply with these conditions, they can be taken back into custody and forfeit the money they paid for bail.
When deciding about pretrial detention, judicial officers consider several factors, including the defendant’s criminal history and whether they pose a flight risk. They have broad discretion and little accountability, and racial biases and stereotypes can also influence their decision-making.
Preparation for Trial
Defendants charged with a crime can be released from jail after paying the court an agreed-upon sum. In most cases, the money is returned after the defendant shows up for all their court dates and abides by other conditions.
Judges consider the accused’s criminal history, previous failures to appear in court, and alleged flight risk in setting bail amounts. In addition, the judge will typically look at the defendant’s community ties, such as their stable employment or strong family connections, to ensure they are not a threat to their community.
Securing a bond allows individuals to continue working, attend to their familial obligations, and consult with their legal counsel, all while remaining free of charge until their trial. For this reason, it is an important safeguard that preserves the principle of innocent until proven guilty.
Access to Legal Representation
Upon arrest, defendants can secure their release from jail by posting money to the court or signing for a commercial bail bond. A judge determines the amount of the bail based on several factors, including the severity of the alleged offense and the chances that the accused will flee before their trial date. While the Eighth Amendment prohibits excessive bail, judges retain broad discretion when making these decisions. By enabling individuals to secure their freedom, bail bonds ensure they can fully engage with their defense attorneys and prepare for trial without fear of losing their jobs or being separated from family members. Equal access to justice is vital and should not be denied due to financial hardship.
Fairness
Bail is an amount of collateral given as security to ensure individuals accused of crimes appear for court dates. However, failure to appear can result in penalties being levied against them. Judges consider several factors when setting bail amounts, such as crime severity, past criminal history, flight risk, and potential threat to community safety when setting them.
Unfortunately, financial barriers to pretrial release disproportionately impact poor and minority individuals even before being found guilty, leading to more extended pretrial detention periods and less likelihood of attendance at court proceedings or accepting plea deals.
To address these issues, Fair and Just Prosecution (FJP) advocates for reforms to the bail system. These reforms would eliminate cash bonds, reduce pretrial incarceration, and allow prosecutors to release defendants without risk of flight or danger. This can be achieved by implementing rigorously tested and bias-free risk assessment models. These measures are necessary to ensure equal access to justice and uphold the principle of presumed innocence.
At the Ahead of Tax & Legal Conference 2023, our tax and legal experts will highlight three important themes: race to net zero, innovation and the international business climate. Below you will find the full program with descriptions and speakers for all sessions. In the morning (Program Tax), the focus is on tax, with some surprising legal insights. In the afternoon (Program Legal), it is the other way around: the focus is on the legal aspects, with some important tax angles to be aware of.
You can register for the conference and subscribe to the sessions you want to attend by clicking the ‘Register’ button at the top of the page or by clicking one of the buttons by the descriptions of the various sessions. You can subscribe to multiple sessions on one theme or create your own program for the day.
Program – Tax
Registration and Welcome
09:00 – 09:20
Registration
09:20 – 09:50
Welcome and Tax Plenary session: Tax from Every Angle
Round One: 10:00 – 10:45
Round Two: 11:10 – 11:55
Round Three: 12:00 – 12:45
Closing Plenary and Networking Lunch Tax & Legal
12:45 – 13:00
Closing Plenary Summary
13:00 – 14:00
Networking Lunch Tax & Legal
Program – Legal
Networking Lunch Legal & Tax and Registration
13:00 – 14:00
Registration and Lunch
14:00 – 14:15
Welcome and Plenary session
Round Four: 14:15 – 14:55
Round Five: 15:20 – 16:00
Round Six: 16:05 – 16:45
Closing Summary and Drinks
16:45 – 17:15
Plenary Session Summary
17:45 – 18:30
Drinks
Race to Net-Zero stream (Program Tax)
10.00-10.45
ESG as part of the deal: the role of ESG in M&A and tax transactions
As we entered the new decade, businesses were already grappling with new challenges to their license to operate: What did it mean to be a good corporate citizen in the context of the climate emergency and continuing social inequality? Consumer, employee and shareholder activism have continued to force environmental, social and governance (ESG) issues to the top of the board’s and management’s agenda. Having a clear corporate purpose is becoming essential.
It is expected that ESG will play an increasing role in M&A transactions. A focus on ESG may give a company a competitive advantage, and when it comes to mitigating
risk and creating value in an M&A transaction, ESG factors must be considered. This panel will discuss market trends and best practice examples.
Our moderator
Eva-Maria Ségur-Cabanac is a partner in the Corporate M&A practice, a member of our global sustainability practice, and a regular speaker on sustainable finance and the legal framework of EU ESG. She advises on cross-border transactions with a focus on energy and sustainable industries.
The end of the race to the bottom: Pillar Two becomes reality
Toward the end of last year, the EU reached agreement on its Pillar Two Directive, leaving a year for member states to implement the GloBE rules into domestic law. Other jurisdictions are also starting to implement the GloBE rules, and the OECD released its guidance regarding safe harbours and penalty relief, as well as public consultations on the GloBE information return and tax certainty for the GloBE rules. Now that the focus is shifting from policy to implementation, the real work of preparing for Pillar Two has begun. This panel will discuss a number of case studies to explain some interesting options to qualify for the safe harbour rules and to mitigate the impact of Pillar Two after the safe harbour rules stop applying.
Our moderator
Michiel Kloes is a partner in our Direct Tax practice group and advises on supply chain planning, mergers and acquisitions, corporate restructurings, treaty application and EU law. The tax aspects of the new world of work are currently high on the agenda of many of his clients
Is global formulary apportionment on the horizon? What you need to know about Pillar One
This panel will provide a refresh on the building blocks of Pillar One, discuss in detail the recent Pillar One consultation documents on Amount B, digital services tax and similar measures, and address what happens if there is no global adoption of Amount A.
Our moderator
Antonio Russo is a partner in our Transfer Pricing practice group and is chair of our Global Tax Practice Group. Antonio specializes in the design, implementation and valuation of transfer pricing for businesses and intangible assets.
Virtual reality and real-life consequences: taxes and law in the metaverse
If you want to do business in the metaverse, you will have to deal with some legal and tax challenges. How do you protect your brand and intellectual property in the metaverse? Are your contractual agreements fit for purpose for new and existing partnerships? How do you invoice for virtual products delivered, and where do you pay taxes on those real revenues from a virtual world? In this session, this panel will guide you through the tax and legal aspects of doing business in the metaverse and dealing with cryptocurrencies and non-fungible tokens.
Our moderator
Roger van de Berg is a legal director in our Indirect Tax practice group and specializes in VAT and other indirect taxes, with a great interest in cryptocurrency & digital economy taxation. He regularly publishes and speaks on emerging technologies such as crypto, blockchain, NFTs and metaverses.
Transforming business for a connected world: tax and legal challenges for an online business
The pace of digital acceleration has prompted companies across all industries to re-examine and transform their business models. Smart technologies such as 5G, AI/robotics, machine learning and the Internet of Things are all becoming more interconnected and helping businesses design and execute their digital transformation plans. The economy is becoming increasingly digitalised, and, unsurprisingly, online businesses are on the rise. A constant increase of new regulations may pose various tax and legal challenges for companies that often, from the very first day, will operate globally. This panel will examine the constantly changing tax and legal considerations for an online business.
Our moderator
Jan Snel is a partner in our Indirect Tax practice group and primarily advises international high-tech, e-commerce and medical technology companies on international VAT and customs law. Jan Snel is a regular international speaker on EU VAT and customs issues.
No office, no problem: considerations of working from anywhere
The COVID-19 pandemic is almost in the rear-view mirror, but some changes are here to stay. Having experienced mandatory “working from home” during the pandemic, employees now expect to have this option made available to them permanently. The panel will discuss the tax implications of remote work, including permanent establishment considerations, employer withholding tax obligations, corporate income tax and apportionment issues. We will also present real-life, practical advice for companies establishing or increasing their remote workforce, such as best practices and guidelines that every company should institute as they adapt to their “next” normal.
Our moderator
Don-Tobias Jol is a partner in the Direct Tax practice group with a special focus on global compensation and benefits taxation, with a particular emphasis on executive, equity and expatriate compensation. He is a sought-after author and speaker on a variety of international remuneration issues relating to the (inter)national taxation of compensation & benefits.
The road to advanced certainty and relief from double taxation — the impact of the changing landscape
With the growing complexity of the global tax environment and a rapid increase in transfer pricing controversies, advance pricing agreements (APAs) are becoming even more important as a transfer pricing risk mitigation tool. Likewise, the availability of Mutual Agreement Procedure (MAP) relief is key to the overall tax strategy. How does the changing transfer pricing landscape impact the APA and MAP process? Several years into CBCR and BEPS, and with Pillar One on the horizon (or not), it is time to take stock of what corporate taxpayers may expect by sharing the most recent experiences and discussing the trends we see emerge.
Our moderator
Margreet Nijhof is a transfer pricing partner and focuses on domestic and international tax planning in the US with an emphasis on corporate reorganizations and restructurings, global tax planning and transfer pricing. Margreet Nijhof has been highly regarded in leading directories for years, both individually and with her team, and she’s a strong advocate for inclusion and diversity in the workplace.
Tax dispute resolution: burden of proof in transfer pricing disputes
Transfer pricing disputes are on the rise. For many multinational companies, transfer pricing continues to be their top audit risk. Transfer pricing disputes are among the most complex, impactful and time-consuming controversies in tax. But when it comes to a transfer pricing dispute, who carries the burden of proof and what role does TP documentation have in this regard? This panel will share recent Dutch audit and litigation experience and the – yet untested – approach taken by the Dutch tax authorities trying to shift the burden of proof to taxpayers in transfer pricing disputes.
Our moderator
Wibren Veldhuizen is a partner in the tax practice group and has extensive experience in tax planning and restructuring. He has assisted clients in developing strategies for the conclusion of ATR’s as well as tax audit defense and tax litigation.
Challenges from every angle: from beneficial ownership to unshelling, will your corporate structure pass the test?
Making a corporate structure future-proof has become very complex as tax developments are playing a growing role when a corporate structure is designed. Examples of such developments include the proposed ATAD 3 Directive, which aims to curtail the use of legal entities in the EU with no or minimal substance and economic activity (so-called “shell entities”), although also affecting valid investment-driven structures. Secondly, the so-called Danish cases of the CJEU have led to increases scrutiny of passive income streams across the EU. Moreover, there is an increasing audit focus from the tax authorities. This panel will examine which corporate and financing structures are currently most at risk of being scrutinised. It will also examine the best practices in corporate reorganisations, such as legal entity and financial instrument rationalisations.
Our moderator
Juliana Dantas is a partner in our Direct Tax practice group, focusing mainly on international tax planning, group restructuring, mergers and acquisitions, investment and financial structures, fund structuring, treaty interpretation and application. Juliana is qualified to practice both Brazilian and Dutch law.
What legislation will you face on your way to net zero? How will you comply with and report under ESG legislation, and how can you mitigate litigation risk? Eva-Maria, William-James and Heleen share their views and insights on the legal path the race to net-zero will take.
Our speakers
Eva-Maria Ségur-Cabanac is a partner in the Corporate M&A practice, a member of our global sustainability practice, and a regular speaker on sustainable finance and the legal framework of EU ESG. She advises on cross-border transactions with a focus on energy and sustainable industries.
Heleen Vrolijk is a legal director in the Global Reorganizations Practice Group and advises multinational companies on corporate governance, ESG and cross-border corporate reorganizations.
William-James Kettlewell is an associate in the EU Competition and Regulatory Affairs Practice Group and advises businesses extensively on European-wide energy, climate and sustainability issues, with specific experience in EU climate policies and the new EU ESG reporting landscape.
How does the legal sustainability framework for real estate impact your business?
In the race to net-zero, the real estate industry will play an important role. The government’s net-zero target and the measures it intends to take to achieve and enforce it mean that developers, lenders and occupiers will be forced to change. In an industry that has traditionally been “business as usual,” this will have an impact by 2050. Paul Goedvolk and Fedor Tanke and give you the inside scoop on the key components of the legal sustainability framework for the real estate (finance) industry, how they impact your business, how they interact and why they’re a big deal for the real estate and finance industry.
Our speakers
Paul Goedvolk is a partner in the Real Estate practice group and advises on all aspects of commercial real estate, real estate finance and project development, and has particular experience with sustainable real estate, (renewable) energy projects and data center development. Paul Goedvolk is regularly asked by the media to comment on developments in sustainable real estate.
Fedor Tanke is counsel in the Banking & Finance practice group and advises national and international banks, equity funds and sponsors and has particular experience in the real estate sector.
The race to net-zero and other ESG-related compliance requirements will lead to an increase in the number of class actions as investors, consumers and other stakeholders examine what companies are actually doing in light of existing and new ESG obligations. As the Netherlands is a popular forum for international class actions, many of these ESG-related class actions will be filed in the Dutch class action register. Frank Kroes and Sjef Janssen will share their knowledge and experience with litigation related to ESG and climate change, and class actions in the Netherlands.
Our speakers
Frank Kroes is a partner in the Dispute Resolution practice group and is experienced in complex commercial disputes and domestic and international arbitration. He represents clients in a wide range of industries before courts at all levels, including the Supreme Court and the European Court of Justice.
Sjef Janssen is a senior associate and focuses on commercial and competition litigation, representing a variety of clients before courts of all instances.
Understanding the value of data and compliance with regulations
Accelerating technologies not only use but also generate large volumes of data. While the legislative focus has long been on personal data protection, since recent years lawmakers are also recognizing the importance of access to and reuse of non-personal data for technological developments. Nathalja Doing and Remke Scheepstra will guide you through the legal developments of collecting, processing and sharing data internationally.
Our speakers
Remke Scheepstra is a partner Employment and advises on all employment law matters, in particular data protection and compliance issues. She supports clients throughout the data protection cycle, from implementation to investigation and enforcement.
Nathalja Doing is a legal director in the IPTech and Data Protection practice and advises on new EU and national laws and regulations in the digital society, including platform and content regulation, (digital) marketing and advertising, and data protection.
At Baker McKenzie we are at the forefront of legal project management, believing a structured approach to complex matters results in increased efficiency, cost certainty and the ability to meet challenging deadlines. Our global team of legal project managers covers all regions and practice groups, and works alongside our lawyers, tax specialists, notaries and economists to provide innovative and practical support to client projects. They design and implement delivery solutions and drive efficiencies through better scope definition and process design, matter management, bespoke fee reporting and the deployment of advanced technology platforms. Laura Rietvelt and Patricia Hofsteenge share with you their experience managing complex, international legal projects.
Our speakers
Laura Rietvelt is a partner in Corporate Structures, advising on the design, implementation and management of global restructurings and leading international restructurings for many of our clients.
Patricia Hofsteenge is a senior legal project manager, assisting lawyers and tax counsels in the planning, implementation and evaluation of projects involving multiple jurisdictions and practices. She has extensive experience in the use of legal technology in projects.
Virtual Reality, Real Life Consequences — The metaverse: law and taxes
If you want to do business in the Metaverse, you must deal with some legal and tax challenges. How do you protect your brand and intellectual property in the Metaverse? Are your contractual agreements in order for new and existing partnerships? How do you invoice for virtual products delivered and where do you pay taxes on those real revenues from a virtual world? Benjamin van Kessel van de Berg will guide you through the legal and tax aspects of doing business in the Metaverse and dealing with cryptocurrencies and NFTs.
Our speakers
Benjamin van Kessel is a partner in the Amsterdam IP Tech and Commercial practice group and is experienced in international platforms, marketplaces and emerging technologies.
Roger van de Berg is a legal director Tax and specializes in VAT and other indirect taxes. Roger regularly publishes and speaks on emerging technologies such as crypto, blockchain, NFTs and metaverses.
What does the new world of work mean for you as an employer?
Flexibility is the currency in the new world of work. Both employers and employees want to take advantage of the opportunities offered by innovation, changes in work culture and demands of the workforce. What does this workforce redesign mean for an employer? And how can you manage the international tax risks? Danielle Pinedo and Michiel Kloes enlighten you on any blind spots you might have with complex labour, tax and compliance issues.
Our speakers
Danielle Pinedo is an employment law partner specializing in employment litigation, individual and collective dismissals, restructuring and related litigation. Danielle has experience in new technologies and global mobility.
Michiel Kloes is a partner in our Direct Tax practice group and advises on supply chain planning, mergers and acquisitions, corporate restructuring, treaty application and EU law.
The Future of Diversity in the Legal Context – Developments & Impact of legislation supporting the ID&E agenda
While the awareness and acceptance of the business critical reasons for Inclusion, Diversity and Equity is now part and parcel of the strategy of many multi-nationals, legal developments that support the ID&E agenda are emerging at a fast pace. Our panel will discuss topics such as legislative developments in a variety of areas including health & safety legislative developments to support psychological safety, whistleblower legislation, non-biased recruitment legislation developments and diversity quotas to name a few. In addition, we will discuss emerging trends that can be distilled from recent jurisprudence.
Our speakers
Mirjam de Blécourt and Margreet Nijhof, partners of Baker McKenzie Amsterdam, share a commitment for advancing the ID&E agenda. Mirjam leads our Employment law team and has repeatedly been recognized as one of the best in her field. Both in her work as a lawyer and as a senator in the Dutch Senate, inclusion and diversity is high on her agenda. Margreet is a member of our Tax team and is the Practice Group Leader for the EMEA Tax group within Baker McKenzie. In her role as PGL she is responsible for executing the Baker McKenzie ID&E agenda for the EMEA Tax team. Mirjam and Margreet will lead the discussion on the legal trends impacting the ID&E agenda.
How will these international M&A trends affect your business?
Baker McKenzie is a transactional powerhouse with more than 2,500 corporate lawyers in over 46 countries. Mo Almarini, Koen Bos and Megan Ruigrok work on cross-border transactions on a daily basis and will share their views with you on M&A trends and the expected impact of such trends on deals. We have also invited one of our clients who is experienced in doing cross-border deals to provide you with the corporate perspective on the topic.
Our speakers
Mo Almarini is a partner in our Corporate M&A practice and advises on mergers and acquisitions with a particular focus on private equity. Mo regularly lectures on various corporate law topics.
Koen Bos is a partner in the Corporate M&A and Private Equity practice group and specializes in domestic and cross-border M&A transactions, joint ventures, private equity investments and corporate restructurings.
Megan Ruigrok is a legal director in the Indirect Tax practice group and specializes in tax dispute resolution, international tax law and transactional work. She is a key expert in procedural tax law.
Sanctions and geopolitical uncertainty are the “new normal” — how to deal with them?
As countries, blocs and regions seek to advance their foreign policy and national security goals, the global sanctions compliance landscape is becoming increasingly complex. Paul Amberg and Derk Christiaans will give you an international perspective on the legal and practical consequences of global sanctions regimes and the impact on your business.
Our speakers
Paul Amberg is a partner in our Madrid office. He advises multinational companies on export controls, trade sanctions, antiboycott rules, customs laws, anti-corruption laws and commercial law matters.
Derk Christiaans is a senior associate and advises clients on EU and Dutch sanctions compliance and enforcement issues, export controls, anti-boycott laws and trade compliance.
The impact of volatile market developments on intra-group cash management
Recently, there has been a global pandemic, a war that has severely impacted the world economy, and inflation and interest rates that have impacted global businesses. These drastic changes in market conditions have meant that intra-group cash management is currently high on the agenda for multinational companies. As market conditions directly impact current and new cash management structures, the cash management function must be supported by various disciplines (legal, tax, transfer pricing) in ditto jurisdictions to manage the complexity of these structures on a global scale. In their presentation, Corinne Schot and Andre Dekker will therefore take a holistic look at current trends in cash management.
Our speakers
Corinne Schot is a partner in the Banking & Finance practice group and managing partner in our Amsterdam office. Corinne Schot has extensive experience in derivatives, structured finance and international financial regulation and is regularly listed in leading directories.
Andre Dekker is a director in our Transfer Pricing practice group and has extensive experience in the design, planning and documentation of intercompany transactions for multinational clients.
Closing the deal is just the beginning! Delivering a successful integration
Increasing globalization and economic uncertainty have created a much more demanding and competitive marketplace while shareholders continue to pressure companies to increase their returns. Change through successful integration and reorganization can often ensure a business is fully equipped to meet these challenges. However, the hard truth is that many businesses never reap the intended benefits as transformations often fail to make the leap from planned strategy to effective execution. Gillis Kempe. Hub Stolker and Harald van Dobbenburgh have been guiding clients through these transformations for years to ensure they meet their intended objectives, and will share their insights during this session.
Our speakers
Gillis Kempe is a partner in the Corporate Structures practice and a member of the Amsterdam Tier 1 Reorganizations Practice Group, specializing in domestic and cross-border corporate restructurings, mergers and acquisitions, including the establishment of new corporate structures.
Hub Stolker is a partner in our transfer pricing practice group and advises multinational companies in (multilateral) transfer pricing audits and disputes, incl. mutual agreement procedures and arbitration, the applications and renewals of APAs, cross-border corporate restructuring, and supply chain optimization.
Harald van Dobbenburgh is a partner in our Direct Tax practice group who predominantly works on business reorganizations and investment structures for clients in the CG&R space.
Nexon, the publisher guiding MapleStory and other on-line game titles, is embroiled in a series of legal actions in opposition to Ironmace Video games, the developer of indie hit Dark and Darker. The conflict has led to a police raid, the game’s elimination from Steam, and a developer-dispersed torrent. With a new lawsuit, it appears as even though this convoluted conflict may possibly be much from about.
Dark and Darker is a fantasy video game very first made out there for playtesting in 2022. Gamers get the role of regular fantasy courses like barbarian or mage, and then struggle their way by means of fantasy dungeons, assaulted by both of those nefarious skeletons and other players.
The video game has savored desire during its playtests, but Ironmace has been hindered by allegations created by Nexon that Darkish and Darker is designed from stolen code and property. Nexon has pursued authorized motion in opposition to Ironmace in March, Nexon filed a stop and desist and DMCA takedown that led to Ironmace eliminating Darkish and Darker from Steam. Ironmace prematurely printed, then pulled, a GoFundMe with a purpose of $500,000 to protect legal fees and keep on to pay out personnel in the course of improvement on Darkish and Darker. With Ironmace not able to carry out its prepared playtest through Steam, the developer created the sport offered through torrents rather.
Now Nexon is next up with a lawsuit versus Ironmace, alleging copyright infringement. Nexon alleges Dark and Darker was designed in component from one particular of the publisher’s projects, declared as “P3” in 2021, and that P3 and Dim and Darker are substantially the same video game. Developers from Nexon would go on to be a part of Ironmace, a studio which describes itself as “a merry band of veteran video game builders disillusioned by the exploitative and greedy methods we once served generate.”
Nexon submitted a lawsuit on April 14 at the U.S. District Court docket for the Western District of Washington demanding a jury demo.
Nexon’s grievance names Ju-Hyun Choi, a developer at Ironmace, and Terence Seungha Park, CEO of Ironmace. Choi is a previous Nexon personnel and the director of the P3 job, Nexon explained in its criticism. Choi is alleged to have “solicited the members of the P3 Job group to recreate P3 outside the house of Nexon” “succeeded in recruiting approximately 50 percent of the P3 crew which include Park” and “transferred 11,602 P3 Job files from Nexon to his very own non-public servers.”
Nexon states that gave Ironmace a significant leg up on Darkish and Darker’s enhancement:
When it usually can take a sizeable sum of time to create a video game of P3’s complexity from scratch, Ironmace was able to release a demo of P3—renamed “Dark and Darker”—just 10 months right after Ironmace was fashioned. The reason Defendants were being ready to launch Darkish and Darker so quickly was that they took edge of the head start off supplied to them by thieving Nexon’s trade secrets—trade strategies that took a workforce of far more than 20 men and women working for eleven months at Nexon’s expenditure to produce.
The lawsuit also compares belongings of P3 and Dark and Darker, like a upper body-opening animation and a potion’s situation on the participant.
Nexon is seeking injunctive reduction to block the distribution of Darkish and Darker and undetermined financial reduction from damages. All through the conflict, Ironmace has taken care of its innocence, indicating that all code was created in-home and most belongings ended up purchased from the Unreal Motor Marketplace.
Artificial intelligence (AI) is undoubtedly the hottest topic in technological innovation. The truth, however, is that conventional AI programs have long been applied as enterprise solutions for a variety of company services, including inventory management, customer-support management, search engine optimization, market research, and outbound email campaigns. Even the practice of law has employed forms of AI in managing an unwieldy universe of documents for production in eDiscovery and due diligence.
While AI has disrupted the competitive marketplace, what is creating friction with current business operations, and even the practice of law, is generative AI. Generative AI platforms, such as OpenAI’s ChatGPT, are taking many to task on the fundamentals of intellectual property law, including authorship of copyrightable works and inventorship of patentable subject matter. But as legal practitioners look for answers to these legal issues, AI-based technology continues to rapidly evolve, leaving businesses, and their counsel, a step (or two) behind innovation.
While generative AI shows no present sign of ceasing to make its way into various business practices, such as the digitization of human resource operations, the legal world has gained key insights from recent court decisions and/or administrative guidance. We address a few of these takeaways, with the intention to provide subsequent alerts as the law on AI continues to take shape.
The Basics – AI and its Applications
Depending upon whom you ask, you can receive a variety of definitions or explanations of AI. Some define AI as machine learning (ML), which focuses on learning and improvement from repetitious experiences, while others explain AI in the context of deep learning (DL), which focuses on algorithms or neural networks to train a model. The reality, however, is that AI is inclusive of both ML and DL, and it is a step beyond: it is the ability of a machine to initiate intelligent human-like cognitive thinking and behavior, based upon information learned on a rolling basis.
Effective AI deployment is often contingent upon the scale, breadth, and quality of data available to the program. For AI to mimic human thinking, an AI system is trained on a dataset and learns by identifying patterns that link inputs with outputs. The “learned” AI may then translate new inputs received into recommendations, classifications, and, in some cases, predictions. And, for generative AI programs, the AI may then produce external-facing content, such as source code, artwork, or narrative text.
Authorship and Inventorship – a Seemingly Settled Issue
While intellectual property law is continuing to take shape around AI, legal authorities have recently emphasized that AI cannot function as a “person” under copyright and patent law.
In November of 2018, computer scientist Dr. Steven Thaler filed a copyright application with the United States Copyright Office (USCO), aiming to register a two-dimensional visual work, as reproduced below:
A Recent Entrance to Paradise
Thaler identified the author of the work as “Creativity Machine” – a generic name for an AI system Thaler created, called Device Autonomous Bootstrapping of Unified Sentience (DABUS). The USCO denied the application, contending that the work was made “without any creative contribution from a human actor.” After the USCO’s Copyright Review Board affirmed the USCO’s rejection, Thaler filed suit in the U.S. District Court for the District of Columbia, where Thaler seeks a holding that AI-generated works are copyrightable under federal law.1 The case is proceeding along, with no expectation that the court will deviate from the USCO’s current stance (as discussed more below).
Thaler has not only challenged issues of authorship in copyright law but also invoked questions of inventorship in patent law. In July 2019, Dr. Thaler filed two patent applications with the United States Patent and Trademark Office (USPTO), claiming DABUS as the sole inventor.2 Like the USCO, the USPTO refused to allow the patent applications, stating that AI is not a “natural person” to which a patent may be granted.3 Dr. Thaler eventually appealed to the Federal Circuit, which affirmed the USPTO’s conclusion that the Patent Act expressly contemplates that inventors must be “individuals.”4 While Dr. Thaler’s ongoing efforts are likely to be in vain, he has nevertheless filed a petition, on March 17, 2023, with the U.S. Supreme Court for further review.5
A day before this petition was filed, the USCO issued a statement of policy on works created with the assistance of AI, re-affirming its position on human authorship. The USPTO, on the other hand, has requested public comments regarding AI and inventorship. Comments are expected to close on May 15, 2023.
Works Created from Generative AI – a Not-So Settled Issue
While intellectual property law appears to be settled as to “who” may qualify as an author or inventor of intellectual property, the law is not so settled on the protection of AI-generated works.
In the context of copyrightable works of authorship and patentable inventions, certain software may be used to create the underlying work or the underlying invention. Of course, this begs the question – while an inventor or author must be a human, just how much technological intervention (i.e., “digital help”) can be used to reach a copyrightable or patentable threshold?
Copyright law has historically been behind the ball on technological development. For example, in the 19th century, the Supreme Court was tasked with clarifying that photographs constitute copyrightable subject matter, even if there was mechanical intervention by a camera.6 While it seems silly to think that photography was at one point not contemplated by copyright law, it could seem laughable at some point in the future, that AI-generated works were not protectable under copyright law. So, how much “intervention” is exercised by an AI-driven machine?
AI programs use a number of datasets. Many AI programs, such as OpenAI’s ChatGPT and DALL-E, are driven by crawling (or “scraping”) the internet and pulling information into its categorical and organized datasets, as this information is available in mass quantity, easily accessible, and “free.” Of course, much of what resides on the internet is also protected by copyrights, trademarks, patents, or combinations thereof.
The power of generative AI technology was put on display before the USCO. In September of 2022, the USCO issued its first notice of registration to a partially AI-generated graphic novel, Zarya of the Dawn, excerpts of which are shown below:
Zarya of the Dawn, Cover Page and Second Page
A month later, after the USCO became aware of public statements and online articles on the author Kristina Kashtanova’s use of generative AI, the USCO issued a notice to the author that the work may be cancelled, requesting details on the level of human involvement in creating the graphic novel. In this letter, the USCO asserted that the work could only be protected with respect to the selection, coordination, and arrangement of the work’s written and visual elements, but that copyrightable protection could not extend to the visual elements themselves, each of which were generated by AI-program Midjourney.
While it remains to be seen whether Kashtanova or Midjourney, responds to the USCO’s letter, the USCO has very recently issued guidance that it will “consider whether AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own mental conception, to which [the author] gave visible form,” which is “necessarily a case-by-case inquiry.” So instead of shutting the door entirely, the USCO will undertake a fact-intensive inquiry to see what does (and what does not) fall within the ambit of protectable expression in an AI-generated work.
Generative AI – The Thin Line Between Originality and Derivation
There is no doubt that AI programs, such as ChatGPT, wield incredible power, and individuals and companies will continue to leverage this power for personal or commercial gain. Of course, the issue is that AI programs often pull, into their datasets, certain protected intellectual property. This continues to keep businesses and content creators up at night, with the fear that their protectable intellectual property will be used by AI to generate “new” intellectual property.
Most companies are focused on AI’s unauthorized or inappropriate use of their copyrighted works. Generally speaking, copyright-infringement determinations turn on (1) whether an alleged infringer had access to a copyrighted work, and (2) whether there was substantial similarity between the copyrighted work and accused work. For AI programs, if a copyrighted work is contained in the data set scraped from the public domain (e.g., the internet), then assuredly there is access to the copyrighted work for infringement purposes. So then, the analysis hinges on substantial similarity. Did the AI program employ a content-moderation module, wherein the information that is being provided as the answer is being scanned to make sure it does not include any inappropriate (or infringing) content? If not, the AI program may have unauthorizedly “borrowed” from the copyrighted works’ expression.
With non-AI-generated works, individuals use copyright-protected works on the basis of fair use, or at the permission of the copyright owner. So, should AI-generated works differ in any way from traditional notions of permissible use? Does it matter, for infringement purposes, if AI-generated works themselves are not copyrightable? Or, does it matter if the author has used the AI program to create further derivations of the author’s original, core expression of the work? Can Paramount use AI programs, such as DALL-E, to create protectable expressions of SpongeBob, especially where SpongeBob was originally created by human intervention? Or Can Paramount use the AI programs to create entirely new characters in connection with its already existing intellectual property in SpongeBob? What and where is the line?
Present-Day Actions
Administrative bodies and courts have attempted to resolve early legal challenges presented by AI. But, as more answers are provided, so too are more questions offered. While it seems that there is no clear guidance from the “powers that be,” this lack of guidance does not absolve individuals and companies from exercising sound intellectual property “hygiene.”
Companies must continue to only copy, reproduce, distribute, or otherwise use intellectual property about which they know the source or origin. Additionally, companies need to affirmatively file for copyright protection for their outwardly facing works, so that they can take advantage of the benefits of copyright registration, including the right to sue in federal court. Likewise, attorneys’ fees and statutory damages, often the “hammer” of these infringement litigations, can only be obtained if the copyright application was filed prior to the infringement or within three months of publication. Furthermore, companies need to educate their personnel on an Intellectual Property Protection Plan that includes copyright usage principles and policies on using generative AI programs in connection with their job responsibilities. And above all, companies must increase their policing efforts, ensuring that their registered (and non-registered) intellectual property is not exploited by third parties leveraging the power of AI.
As to patents, companies, on an early and often basis, must review their technological innovations and invention disclosures, clarifying how potentially patentable subject matter is being generated (e.g., through the use of AI programs or not), and filing patent applications in connection with this patentable subject matter. While the issue of AI programs has further complicated the question as to what qualifies as patentable subject matter, too many companies still believe that software is outrightly not patentable. However, under the Alice decision from the Supreme Court, new and useful software applications and related inventions may be protectable or are likely protectable if they address a stated technical problem in a new way.7
1Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.).
2 U.S. Application Nos. 16/524,350 (teaching a “Neural Flame”) and 16/524,532 (teaching a “Fractal Container”).
3Thaler v. Vidal, 43 F.4th 1207, 1210 (Fed. Cir. 2022).
4Thaler v. Vidal, 43 F.4th 1207, 1212 (Fed. Cir. 2022).
5Thaler v. Vidal, Petition for a Writ of Certiorari, United States Supreme Court (Mar. 17, 2023).
6Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
7Alice Corp. Pty. Ltd. v. Cls Bank Int’l, 573 U.S. 208 (2014).
As the City of Jackson faces a depleted lawful fund, dried up mainly from a combat more than who picks up residents’ trash, one of the companies seeking to pick it up is suing the metropolis in the hopes that a court docket will award it the contract.
Jackson’s authorized-defense charges could sooner or later trickle down to residents’ expenditures.
Richard’s Disposal Inc., who experienced been finding up trash underneath an emergency contract issued by the mayor but by no means authorised by the Town Council, submitted suit Monday in Hinds County Circuit Court, just in advance of the Council was scheduled to hold an crisis assembly to vote on a agreement.
The New Orleans-dependent trash collection small business is looking for a judge to award it with a six-year good waste collection deal, together with payment for “damages and losses sustained as a consequence of the denial of the agreement to Richard’s.” It is also asking the choose to buy the city to spend its legal service fees and any other expenditures.
In the court files, Richard’s lawyers argue that their consumer was the crystal clear winner of the Ask for for Proposal that kicked off the ongoing battle around collection.
“The conclusion to not approve the contract between the Metropolis and RDI is not supported by substantial evidence in that Richard’s submitted the most experienced proposal centered on the things in the October 2021 RFP,” the lawsuit explained. “The Council’s selection was arbitrary and capricious as it violates apparent statutory prerequisites.”
The lawsuit alleges that people violations of statute consist of disapproving of the contract without the need of bring about, environment cost as 35{c024931d10daf6b71b41321fa9ba9cd89123fb34a4039ac9f079a256e3c1e6e8} of the scoring requirements and the Council’s ongoing lawsuit that seeks authorization to award the contract on their own, a shift Richard’s lawyers argue falls outside the house of their statutory powers.
The lawsuit even more alleges that in February 2022, the Council hired independent counsel, which times afterwards encouraged the council that the RFP, which the mayor claimed showed Richard’s as the winner, was legit.
“On February 10, 2022, the Metropolis Council been given a report of its impartial counsel report, advising that the procurement approach adopted the legislation,” the lawsuit reads.
The Council later on employed a different attorney for its lawful action versus Lumumba.
When news of the lawsuit attained Mayor Chokwe Antar Lumumba, he pulled the vote from the agenda, foremost the Council to adjourn after just eight minutes and chaos to split out in the council chambers.
The Richard’s lawsuit is just the latest lawful action taken in the city’s trash wars, but it is not very likely to instantly complete off the very last remaining $400 sitting down in the city’s legal fund, said the City’s Chief Money Officer Fidelis Malembeka right after the Council’s frequent conference Tuesday. Considering that the Town is getting sued by an outdoors organization, its authorized protection can be taken care of by the city attorney’s office and its team, whose salaries are by now accounted for in the city spending plan. If the town attorney’s workplace requires outside the house counsel, it would incur more costs.
The town could bear legal fees if it loses the case and were compelled to spend out damages or address Richard’s authorized charges. People fees could be passed down to citizens in their charges in excess of time.
“We have a authorized section that is staffed and should really be equipped to characterize the metropolis,” Malembeka reported. “Our legal division in fact will take on the defense. If there are issues about capability, the authorized division makes determination no matter if to search for aid from outside the house law firms.”
Just because the City’s defense in Richard’s go well with will not promptly be funded from the lawful fund does not suggest that ultimate $400 is risk-free, even so. The Council has filed a lawsuit through its exterior lawyer in search of a judge to grant it the power to unilaterally award a agreement, saying amid other items that Lumumba is not executing his responsibility by presenting a agreement that a the greater part of councilmembers assist.
City Council President Ashby Foote, of Ward 1, said if the authorized fund is drained empty, additional cash will want to be moved into it from other areas of the city budget.
“We are going to have to transfer some dollars in there,” Foote stated soon after the council assembly Tuesday.
Malembeka stated that the transfer is most likely to arrive from the city’s normal fund.
The town has currently used hundreds of 1000’s of dollars on lawful fees in other situations, most notably in the circumstance where by the Council sued Lumumba over his veto of their no vote on the crisis deal with Richard’s.
In accordance to paperwork received by the Clarion Ledger via a Independence of Information and facts request, the Metropolis of Jackson compensated more than $154,000 to a neighborhood legislation agency concerning Might and December of very last yr. That range only accounts for the lawful prices incurred by the mayor in the lawsuit, and files did not include things like any invoices for the initial four months of 2023. All through the crisis council conference Monday, councilmembers had been instructed that they experienced used $200,228 on attorney costs.
In a group meeting past week, the Council’s lawyer, Deshun Martin, said he gives the town a price cut.
“I charge $675 an hour. The Town of Jackson pays, I gave them a lower price, they fork out me 325. This form of dollars ought to not be likely to lawyers when there are dire wants for our city,” Martin claimed.
Lumumba has also expressed problem more than the growing price tag to taxpayers, saying if a ruling is handed down against the town, those penalties may possibly be funded as a result of greater premiums for residents.
“I only hired an lawyer for the reason that I was sued and I was essential to protect myself, suitable? I think that that is another big worry,” Lumumba mentioned. “There are a large amount of troubles and a whole lot of problems all-around the using the services of of lawyers that has taken put.”
The Metropolis could also before long confront fines of up to $25,000 for each day from the Mississippi Department of Environmental High quality. Lumumba reported Monday that users of his administration will fulfill with MDEQ on Wednesday to talk about revising designs for trash collection, prior to fines commence.
No matter if producing contracts for freelance employees or navigating a lawsuit, each and every business enterprise has to deal with authorized issues at some position. With mountains of paperwork and baffling jargon, legal challenges can be primarily intimidating if you deficiency the experience to manage them. But you never have to do it on your individual.
Little organizations can do the job with authorized assist products and services to minimize confusion and guard their property. Request them out forward of time so you and your organization are all set for everything.
What are authorized support products and services?
Small business entrepreneurs face many authorized concerns as nicely as frustrating paperwork, and with no access to the right legal counsel, a firm can operate into serious economic difficulties. Prepare for any circumstance so you are not caught off-guard. The kind of organization you perform will mirror the styles of lawful solutions you’re most likely to need to have. Nevertheless, here are a handful of of the major illustrations of repeated legal companies:
Setting up a enterprise structure: Before launching, you need to look for out an lawyer to determine the small business construction that safeguards you ideal towards legal responsibility statements.
Building contracts: Producing legal and binding contracts are an important aspect of your business functions. Similar to contracts, many businesses will need lawful providers for agreements.
Navigating licensing: Licensing is a prevalent authorized require for modest firms due to the fact quite a few organizations are unaware of potential violations. Licensing solutions save you from high-priced fines down the road.
Preparing for lawsuits: Whilst remaining sued may possibly be a worst-situation situation, authorized aid expert services can enable you prepare for or navigate this variety of circumstance.
Managing human assets: There are numerous HR legalities surrounding the choosing and firing of personnel. Without the right lawful protections in place, your organization can be open to lawsuits.
Addressing harassment: Guarding your business and your staff require the assistance of an lawyer. A lawyer can manage any harassment and discrimination promises that manifest inside your company.
Setting up copyrights: If you have a symbol, trademark or sensitive intellectual property, perform with authorized support solutions to stay clear of violating any copyrights as very well as shielding you from any one infringing on your copyright.
Practically 50 percent of modest firms close forever soon after a catastrophe, but there are methods your enterprise can prepare for the worst emergencies.
Discover competent law assist companies for your organization before you need to have them
Legal assistance companies help smaller business enterprise owners obtain their goals with qualified suggestions and competent illustration. It is greatest to have legislation support on your workforce prior to challenges crop up so your enterprise is using the proper preventative actions to stay clear of legal disputes.
American lawful assistance solutions let company owners concentrate on rising their company’s base line even though the authorized staff handles all the paperwork and intricate aspects of being in compliance with U.S. legal guidelines. Quite a few persons come across it difficult to uncover the right lawful illustration, but if you comply with a several uncomplicated suggestions, you can pick the authorized assistance that greatest meets your wants. Consider the pursuing:
Not all lawyers deliver authorized assistance for company. Just about every legal staff has their very own place of experience.
Law support solutions with expertise are commonly a lot more valuable.
On the web authorized assistance services can permit you to produce simple authorized files for your organization.
>> Study A lot more: The Authorized Conditions You Want to Know
Ideas on picking legal assistance expert services
Investigate your solutions.
Choose time to investigation assistance alternatives ahead of selecting any variety of authorized counsel. The most critical point is to verify that the authorized crew is certified to supply solutions in your condition. On line lawful guidance providers are normally totally free or small price tag, but may not supply adequate protection. Some on the net assistance vendors give just one-time authorized counsel, or they can be hired for ongoing requirements. In this scenario, you pay out a every month cost for accessibility to legal guidance options like endless attorney consultations. These web pages can also connect you with screened attorneys located in your geographic location.
For in-particular person lawful companies, seem for attorneys with marketplace working experience in your discipline. For instance, if you are a tiny enterprise, you may possibly want a law group with experience handling prevalent problems confronted by compact company owners. The lawyer really should be familiar with your market and have references from corporations comparable to yours.
Fulfill with prospective attorneys in advance of selecting.
When choosing your attorney, established up mobile phone calls and conferences with every solution. This individual will possible have accessibility to the most delicate facets of your organization they need to be someone you have faith in and feel reasonably cozy with. If having suggestions, only take into consideration attorneys prompt by men and women you belief who have labored with their lawyer for a prolonged time.
Handle these meetings like an job interview the place you are accomplishing the using the services of put together a record of thoughts pertaining to their time working towards regulation, their availability, when and how they will update you on lawful issues, their expenses and what is involved in these expenditures. Just like in any other job interview, keep absent from somebody who avoids answering any of your inquiries or rushes by means of your assembly.
If you are trying to find authorized counsel in a distinct subject, provide any details and documentation you have relating to the concern. Make sure the lawyer understands your desires and can make tips on how to go forward. Talk to them if they have labored on comparable conditions or if they are familiar with the forms you’ll will need in the system.
Use support before troubles arise.
It is very best to have a law firm employed before any concerns occur. Far more protections are in spot if you have a lawyer ahead of a lawsuit is launched from your company. As you look at diverse firms, think about your choices. Would you rather perform with a compact law organization that can supply additional personalised attention? Nevertheless, a huge agency could have extra lawyers specialised in your subject. Job interview opportunity legislation firms to review references, earlier customer lists and billing methods.
Use an on-line lawful guidance solutions directory to obtain tiny enterprise attorneys.
Acquiring lawful aid for businesses utilised to be a sophisticated method, but on-line legal directories have simplified the approach. These on-line directories are superior than print directories simply because they allow for you to slender the scope of your search by space of exercise and proximity to your office environment.
Facts and privateness concerns are at the forefront of users’ minds. If you are new to the e-commerce space, make guaranteed you are safely and securely managing customer’s information.
Verify the observe file of each and every corporation.
When attaining lawful guidance solutions information, one of the most critical matters you need to have to know is the track document of the authorized team.
Take care of easy legal strategies oneself.
The world-wide-web has paved the way for self-assist in numerous parts, including lawful issues. While most legal methods need to be remaining to the experts, there are some very simple issues — this kind of as incorporating, trademarking, copyrighting, and implementing for a patent — you can manage on your very own at a a great deal lessen price tag.
Pay focus to how the authorized help business treats you now which is an indication of how they will take care of you later when you will need their companies.
