Due in part to the learned nature of artificial intelligence technologies, the spectrum of things that exhibit “intelligence” has, in debates over such things, expanded to include certain advanced AI systems. If a computer vision system can “learn” to recognize real objects and make decisions, the argument goes, its ability to do so can be compared to that of humans and thus should not be excluded from the intelligence debate. By extension, AI systems that can exhibit intelligence traits should not be treated like mere goods and services, and thus laws applicable to such good and services ought not to apply to them.
In some ways, the marketing of AI products and services using names commonly associated with humans, such as “Alexa,” “Sophia,” and “Siri,” buttresses the argument that laws applicable to non-human things should not strictly apply to AI. For now, however, lawmakers and the courts struggling with practical questions about regulating AI technologies can justifiably apply traditional goods and services laws to named AI systems just as they do to non-named system. After all, a robot or chatbot doesn’t become more humanlike and less like a man-made product merely because it’s been anthropomorphized. Even so, when future technological breakthroughs suggest artificial general intelligence (AGI) is on the horizon, lawmakers and the courts will be faced with the challenge of amending laws to account for the differences between AGI systems and today’s narrow AI and other “unintelligent” goods and services. For now, it’s instructive to consider why the rise in the use of names for AI system is not a good basis for triggering greater attention by lawmakers. Indeed, as suggested below, other characteristics of AI system may be more useful in deciding when laws need to be amended. To begin, the recent case of a chatbot named “Erica” is presented.
The birth of a new bot
In 2016, machine learning developers at Bank of America created a “virtual financial assistant” application called “Erica” (derived from the bank’s name America). After conducting a search of existing uses of the name Erica in other commercial endeavors, and finding none in connection with a chatbot like theirs, BoA sought federal trademark protection for the ERICA mark in October 2016. The US Patent and Trademark Office concurred with BoA’s assessment of prior uses and registered the mark on July 31, 2018. Trademarks are issued in connection with actual uses of words, phrases, and logos in commerce, and in the case of BoA, the ERICA trademark was registered in connection with computer financial software, banking and financial services, and personal assistant software in banking and financial SaaS (software as a service). The Erica app is currently described as possessing the utility to answer customer questions and make banking easier. During its launch, BoA used the “she” pronoun when describing the app’s AI and predictive analytics capabilities, ostensibly because the name Erica is a stereotypical female gender name, but also because of the apparent female-sounding voice the app outputs as part of its human-bot interface.
One of the existing uses of an Erica-like mark identified by BoA was an instance of “E.R.I.C.A,” which appeared in October 2010 when Erik Underwood, a Colorado resident, filed a Georgia trademark registration application for “E.R.I.C.A. (Electronic Repetitious Informational Clone Application).” See Underwood v. Bank of Am., slip op., No. 18-cv-02329-PAB-MEH (D. Colo. Dec. 19, 2018). On his application, Mr. Underwood described E.R.I.C.A. as “a multinational computer animated woman that has slanted blue eyes and full lips”; he also attached a graphic image of E.R.I.C.A. to his application. Mr. Underwood later sought a federal trademark application (filed in September 2018) for an ERICA trademark (without the separating periods). At the time of his lawsuit, his only use of E.R.I.C.A. was on a searchable movie database website.
In May 2018, Mr. Underwood sent a cease-and-desist letter to BoA regarding BoA’s use of Erica, and then filed a lawsuit in September 2018 against the bank alleging several causes of action, including “false association” under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). Section 43(a) states, in relevant part, that any person who, on or in connection with any goods or services, uses in commerce a name or a false designation of origin which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, shall be liable in a civil action by a person who believes that he or she is likely to be damaged by such act. In testimony, Mr. Underwood stated that the E.R.I.C.A. service mark was being used in connection with “verbally tell[ing] the news and current events through cell phone[s] and computer applications” and he described plans to apply an artificial intelligence technology to E.R.I.C.A. Mr. Underwood requested the court enter a preliminary injunction requiring BoA to cease using the Erica name.
Upon considering the relevant preliminary injunction factors and applicable law, the District Court denied Mr. Underwood’s request for an injunction on several grounds, including the lack of relevant uses of E.R.I.C.A. in the same classes of goods and services that BoA’s Erica was being used in.
Giving AI a persona may boost its economic value and market acceptance
Not surprisingly, the District Court’s preliminary injunction analysis rested entirely on perception and treatment of the Erica and E.R.I.C.A. systems as nothing more than services, something neither party disputed or challenged. Indeed, each party’s case-in-chief depended on their convincing the court that their applications fit squarely in the definition of goods and services despite the human-sounding names they chose to attach to them. The court’s analysis, then, illuminated one of the public policies underlying laws like the Lanham Act, which is the protection of the economic benefits associated with goods and services created by people and companies. The name Erica provides added economic value to each party’s creation and is an intangible asset associated with their commercial activities.
The use of names has long been found to provide value to creators and owners, and not just in the realm of hardware and software. Fictional characters like “Harry Potter,” which are protected under copyright and trademark laws, can be intellectual assets having tremendous economic value. Likewise, namesake names carried over to goods and services, like IBM’s “Watson”–named after the company’s first CEO, John Watson–provide real economic benefits that might not have been achieved without a name, or even with a different name. In the case of humanoid robots, like Hanson Robotics’ “Sophia,” which is endowed with aspects of AI technologies and was reportedly granted “citizenship” status in Saudi Arabia, certain perceived and real economic value is created by distinguishing the system from all other robots by using a real name (as compared to, for example, a simple numerical designation).
On the other end of the spectrum are names chosen for humans, the uses of which are generally unrestricted from a legal perspective. Thus, naming one’s baby “Erica” or even “Harry Potter” shouldn’t land a new parent in hot water. At the same time, those parents aren’t able to stop others from using the same names for other children. Although famous people may be able to prevent others from using their names (and likenesses) for commercial purposes, the law only recognizes those situations when the economic value of the name or likeness is established (though demonstrating economic value is not always necessary under some state right of publicity laws). Some courts have gone so far as to liken the right to protect famous personas to a type of trademark in a person’s name because of the economic benefits attached to it, much the same way a company name, product name, or logo attached to a product or service can add value.
Futurists might ask whether a robot or chatbot demonstrating a degree of intelligence and that endowed with unique human-like traits, including a unique persona (e.g., name and face generated from a generative-adversarial network) and the ability to recognize and respond to emotions (e.g., using facial coding algorithms in connection with a human-robot interface), thus making them sufficiently differentiable from all other robots and chatbots (at least superficially), should have special treatment. So far, endowing AI technologies with a human form, gender, and/or a name has not motivated lawmakers and policymakers to pass new laws aimed at regulating AI technologies. Indeed, lawmakers and regulators have so far proposed, and in some cases passed, laws and regulations placing restrictions on AI technologies based primarily on their specific applications (uses) and results (impacts on society). For example, lawmakers are focusing on bot-generated spread and amplification of disinformation on social media, law enforcement use of facial recognition, the private business collection and use of face scans, users of drones and highly automated vehicles in the wild, production of “deepfake” videos, the harms caused by bias in algorithms, and others. This application/results-focused approach, which acknowledges explicitly or implicitly certain normative standards or criteria for acceptable actions, as a means to regulate AI technology is consistent with how lawmakers have treated other technologies in the past.
Thus, marketers, developers, and producers of AI systems who personify their chatbots and robots may sleep well knowing their efforts may add value to their creations and alter customer acceptance and attitudes about their AI systems, but they are unlikely to cause lawmakers to suddenly consider regulating them.
At some point, however, advanced AI systems will need to be characterized in some normative way if they are to be governed as a new class of things. The use of names, personal pronouns, personas, and metaphors associating bots to humans may frame bot technology in a way that ascribes particular values and norms to it (Jones 2017). These might include characteristics such as utility, usefulness (including positive benefits to society), adaptability, enjoyment, sociability, companionship, and perceived or real “behavioral” control, which some argue are important in evaluating user acceptance of social robots. Perhaps these and other factors, in addition to some measure of intelligence, need to be considered when deciding if an advanced AI bot or chatbot should be treated under the law as something other than a mere good or service. The subjective nature of those factors, however, would obviously make it challenging to create legally-sound definitions of AI for governance purposes. Of course, laws don’t have to be precise (and sometimes they are intentionally written without precision to provide flexibility in their application and interpretation), but a vague law won’t help an AI developer or marketer know whether his or her actions and products are subject to an AI law. Identifying whether to treat bots as goods and services or as something else deserving of a different set of regulations, like those applicable to humans, is likely to involve a suite of factors that permit classifying advanced AI on the spectrum somewhere between goods/services and humans.
The Oxford Handbook of Law, Regulation, and Technology is one of my go-to references for timely insight about topics discussed on this website. In the case of this post, I drew inspiration from Chapter 25: Hacking Metaphors in the Anticipatory Governance of Emerging Technology: The Case of Regulating Robots, by Meg Leta Jones and Jason Millar.