Litigation involving artificial intelligence (AI) is set to be the hot topic of 2024. Artificial intelligence has gone from science fiction to mainstream reality practically overnight, and, in doing so, it has far outpaced the development of the law. As a result, key issues remain to be decided even though predictive AI and generative AI are both now in widespread use, and this presents the perfect breeding ground for litigation to guide the way forward.

To illustrate just how new the legal issues surrounding AI are, we can take a look at The George Washington University’s AI Litigation Database. As of the time of writing, the training data lists a total of 102 cases in all of U.S. history involving AI—and many of these cases are still undecided. To put this in context, there are approximately 1,000 lawsuits filed in federal district court every single day. Clearly, AI-related litigation currently represents just a tiny fraction of all litigation nationwide.

“We are anticipating a substantial amount of AI litigation in 2024. While there have been relatively few AI-related cases to date, all indications are that this year will be the tipping point. Looking toward the future, AI could play a role in a significant percentage of all litigation nationwide. ” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

But, this will likely change in 2024. Artificial intelligence is firmly here, and its role in business, the capital and securities markets, and our everyday lives is only going to continue to grow. We are anticipating a substantial amount of AI-related litigation in 2024, with cases filed this year establishing landmark precedents in the years to come.

Why 2024 Will Be the Breakout Year for AI Litigation

Here are seven reasons why 2024 will be the breakout year for AI litigation:

1. Predictive AI is No Longer New

While the reality of living with artificial intelligence has only recently come into the public conscience, predictive AI has been around for a while. Companies and firms in a wide range of industries use predictive AI in varied applications—whether they realize it or not. As public awareness of AI and its risks and limitations grows generally, we anticipate that predictive AI will face more legal scrutiny. Consumer and commercial claims will both become more common, and the liability-shifting provisions in developers’ and vendors’ license agreements, the Electronic Communications Privacy Act, and the Digital Millennium Copyright Act will play a key role in determining who is left holding the bag.

The limited number of cases filed to date demonstrates the breadth of the litigation potential in this area. Pending lawsuits involve issues ranging from auto manufacturers’ liability for accidents involving self-driving vehicles (which rely on predictive AI to make decisions on the road) to law enforcement agencies’ liability for using AI to conduct “predictive policing” with underlying racial bias.

2. Generative AI is Here in a Big Way

Generative AI is here in a big way. For those unfamiliar, generative AI is the technology underlying ChatGPT and its rapidly growing list of competitors. Generative AI allows users to input prompts and receive outputs ranging from written text to musical compositions and photo-realistic images. In a nutshell, to generate these outputs, ChatGPT, and other platforms rely on computer knowledgebase generated by scouring content and data that are currently available online.

The world’s biggest companies are investing billions in generative AI, and companies of all sizes are already leveraging generative AI in their products, services, and marketing campaigns. Yet, some of the most fundamental legal questions that generative AI presents remain unanswered. This is necessarily going to change, and we are already seeing some major publishers leading the way.

3. Predictive AI and Generative AI are Both Here to Stay

While some new technologies come and go, it seems fairly certain that predictive AI and generative AI tools are both here to stay. As a result, companies will need legal guidance, and companies and individuals alike will need to be able to resort to the courts when their rights have been violated. Recognizing that AI is here to stay (and that the law is undecided), we anticipate that companies will invest heavily in ensuring that a class action lawsuit swings in their favor. There will be test cases, and the judges and justices deciding these test cases will establish a precedent with a major summary judgment for the future.

4. Artificial Intelligence Isn’t 100% Reliable

Another factor that is likely to lead to a large body of AI-related case law in the coming years is that artificial intelligence isn’t 100% reliable. Predictions are inherently uncertain, and both predictive AI and generative AI platforms have already exhibited their capability of making mistakes, eventually leading to a court-dismissed lawsuit. If reliance on AI results in an auto accident, misdiagnosis, discrimination, or financial losses, are the plaintiffs alleged liable? Is there a possibility of a motion to dismiss or an amended complaint? This is a fundamental question that does not have a definitive answer.

Another area of AI-related litigation that we anticipate coming to the forefront in 2024 is litigation arising out of non-compliance. In many cases, companies and individuals are relying on AI to make decisions and generate content with major legal implications.

If AI recommends an anti-competitive business strategy or produces defamatory commentary, this raises complex legal questions as well. Here, too, answering these questions will involve generating a body of case law through litigation.

5. The Law Surrounding AI is Still Unclear

As we’ve intimated already, the law surrounding AI is still very unclear. In the limited number of AI-related cases decided to date, judges have often steered clear of making AI-specific decisions—instead preferring to focus on the underlying contractual, statutory, and common law principles. But, as artificial intelligence’s prominence grows, judges are going to be forced to confront the types of questions we’ve discussed above head-on.

Artificial intelligence’s prominence will demand clear legal guidance (or, at least, guidance that is as clear as possible), and companies that need answers will push the agenda with novel legal theories.

6. Artificial Intelligence Can Play a Role (and Is Playing a Role) in All Types of Litigation

Despite the limited number of AI-related cases filed in the US district court prior to 2024, we have already seen artificial intelligence play a role in many different types of litigation. With AI’s extraordinarily broad range of applications, it has the potential to factor into litigation in just about every area of the law in one way or another. Examples of the types of AI-centric litigation we anticipate seeing in 2024 (and beyond) include:

• Antitrust and unfair competition litigation
• Civil rights litigation
• Commercial contract litigation
• Consumer litigation involving AI-powered products and services
• Defamation litigation
• Employment litigation
• Federal white-collar criminal litigation
• Plaintiffs allege intellectual property litigation (patent, direct copyright infringement, trademark, and trade secret)
• Malpractice and professional liability litigation
• Privacy and data security litigation
• Securities fraud litigation

Again, these are just examples. As companies develop new AI models and platforms and other companies use these platforms in new and innovative ways, we will continue to see legal questions arise much faster than they can be answered. Companies will move forward unaware of (or in spite of) the risks involved, and lawsuits will lead the way toward providing some measure of certainty for the future.

7. Awareness of AI and Its Potential, Limitations, and Risks is Growing

Ultimately, AI litigation will become a hot topic in 2024 out of necessity. Awareness of AI and its potential, limitations, and risks is growing. With more awareness will come more use, and with more use will come more claims and disputes. Whether they want to or not, AI developers, vendors, and their customers will need to litigate AI-related disputes—and, in doing so, they will need to push the envelope to try to ensure that the law develops in their favor.

It will be interesting to see which way the first major cases go. For example, while The New York Times’ litigators clearly believe that plaintiffs adequately alleged has grounds to challenge the legality of the fundamental nature of generative AI platforms as they exist today, it is equally clear that the companies behind these platforms—including huge companies like Microsoft and Google—believe they are in the right as well.

But someone has to be wrong. When it comes to shaping AI law, many companies will understandably want to get in on the ground floor, while others will be forced to defend against litigation out of necessity. In either scenario, the outcomes of early AI cases will matter immensely. While technology is currently leading the way, if the courts step in and tell AI developers that they need to rethink their approach, things could turn out the other way around.

So, which way will it go? At this point, it is truly too early to tell. There are lots of big companies and lots of very good lawyers involved on both sides. But one thing is for certain: Answers are needed. It will be interesting to see what cases get filed in 2024—and even more interesting to see which of these cases go to trial.