The GPTJudge: Justice in a Generative AI World

26 Pages Posted: 26 May 2023 Last revised: 21 Jun 2023

See all articles by Maura R. Grossman

Maura R. Grossman

University of Waterloo - David R. Cheriton School of Computer Science; York University - Osgoode Hall Law School

Paul W. Grimm

Duke University School of Law

Daniel G. Brown

University of Waterloo - David R Cheriton School of Computer Science

Molly Xu

University of Waterloo - David R Cheriton School of Computer Science

Date Written: May 23, 2023

Abstract

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they are capable of producing computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to hire forensic experts to address AI- generated evidence, the ability of juries to discern authentic from fake evidence, and whether GenAI will overwhelm the courts with AI-generated lawsuits, whether vexatious or otherwise. GenAI systems have the potential to challenge existing substantive intellectual property (“IP”) law by producing content that is machine, not human, generated, but that also relies on human-generated content in potentially infringing ways. Finally, GenAI threatens to alter the way in which lawyers litigate and judges decide cases.

This article discusses these issues, and offers a comprehensive, yet understandable, explanation of what GenAI is and how it functions. It explores evidentiary issues that must be addressed by the bench and bar to determine whether actual or asserted (i.e., deepfake) GenAI output should be admitted as evidence in civil and criminal trials. Importantly, it offers practical, step-by- step recommendations for courts and attorneys to follow in meeting the evidentiary challenges posed by GenAI. Finally, it highlights additional impacts that GenAI evidence may have on the development of substantive IP law, and its potential impact on what the future may hold for litigating cases in a GenAI world.

Keywords: artificial intelligence, generative AI, creative AI, evidence, copyright

Suggested Citation

Grossman, Maura and Grimm, Paul and Brown, Dan and Xu, Molly, The GPTJudge: Justice in a Generative AI World (May 23, 2023). Duke Law & Technology Review, Vol. 23, No. 1, 2023, Duke Law School Public Law & Legal Theory Series No. 2023-30, Available at SSRN: https://ssrn.com/abstract=4460184

Maura Grossman

University of Waterloo - David R. Cheriton School of Computer Science ( email )

Waterloo, Ontario N2L 3G1
Canada

York University - Osgoode Hall Law School

Paul Grimm

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Dan Brown (Contact Author)

University of Waterloo - David R Cheriton School of Computer Science ( email )

Waterloo, On N2l 3G1
Canada

Molly Xu

University of Waterloo - David R Cheriton School of Computer Science

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