2024 Year in Preview

It’s that time of year again.

Anybody can do a year in review, but it takes a special kind of courage (talent? hubris?) to write a year in preview. With 2023 either in the books or a snowbird vacation away from being history, we look to 2024. Here is what I foresee for the coming year, the 2024 #yearinpreview.

1. AI-yay-yay

In many ways, 2023 was the year of AI. Discussion, concern, hand-wringing and—not to be forgotten—positive impacts to society from #articificialintelligence, will continue to make headlines.

First, legislative and regulatory changes are coming. Europe is going to finally pass its comprehensive AI Act, and the world should be on notice. Companies, wherever they are located, that put an AI tool into service in Europe need to be ready to disclose their algorithms, data sets, goals and ambitions, and prohibited uses for their AI tools, or be subject to severe monetary penalties. The U.S. is taking a more measured approach, but President Biden’s Executive Order on AI earlier this year mandated nearly every government agency review AI policies and make recommendations, and those reviews and recommendations will begin to come out early in 2024. I expect significant legislative and regulatory burdens on companies using AI in their business to begin to take form in 2024.

Second, courts will begin to clarify the copyright risks associated with generative AI. Early looks are that courts are skeptical that generative AI actually “copies” source material, and are even more skeptical that training an AI tool on copyrighted material is an act of infringement, but the cases raising those issues are in early stages. As those cases proceed through discovery and past motion to dismiss stages into summary judgment, we’ll begin to see how copyright claims related to generative AI will play out. I expect more clarity on these issues in 2024.

2. Copyrights and Social Media

It wasn’t so long ago that the pejoratively named “patent trolls” dominated the headlines for leveraging questionable intellectual property rights against the masses and using litigation and litigation threats to disrupt businesses. The more-politely-name non-practicing-entity (NPE) problem has not gone away in the patent world, though certain changes in law and procedure have made those claims easier to defend.

More recently, though, copyright holders have been using the courts and litigation threats against businesses. Some of those cases include mass filings against web sites using allegedly copyrighted images, with cases styled as [Copyright Holder] v. John Does 1-100. Other cases have begun to be threatened or filed against social media users, such as influencers, who (for example) have background music as part of their posts, even background music available through the social media platform. Copyright holders, such as large music publishers, have alleged that much of the music accompanying social media posts is unlicensed. With more and more social media advertising and more and more social media advertising through video, I expect these claims to ramp up, along with a demand from social media users to hold social media companies accountable for the music available on their apps.

3. Getting Personal

I’m not ready to predict, yet, the return to the office, or the return to in-person meetings, or the return of business travel—although I am ready to predict that all of those things will continue to be topics of conversation, wistful memories and angry fist-shaking. I do predict, though, that some of those things will re-emerge as options, and we will have to be both creative and judicious about how we use our personal interactions. Personal interactions will come back, but not at the level they were B.C.E. (Before the Covid Era). That means that we will have to make those personal connections worth it. If you meet a client in person, make it meaningful. If you have to have a face-to-face, make it productive. If you are going to network in person, have a plan. If associates are returning to the office, mentor them more. With in person time rarer, each interaction needs to count more. I expect a slight uptick in the amount of in person time, and significant uptick in how meaningful that time is.

4. The Savvy Client

One of my great professional fortunes is having split my career roughly evenly between law firm life and an in-house counsel role. That fortune has given me perspective on how the outside attorney to in-house attorney relationship has evolved over the last two decades. In-house attorneys are just as smart, just as capable, just as insightful and just as innovative as law firm lawyers—in many circumstances substantially more so. One of the ways the relationship between outside law firms and their clients has evolved in the last ten years or so is the importance of the legal operations function within clients. In-house lawyers (often to their chagrin) have had to manage an array of tools and metrics designed to hold outside lawyers as accountable as any other company supplier. Early in my in-house career, the legal operations push caused much more friction within law departments than it does now, and clients have settled in with tools and operations that make the relationship smoother, more productive, more efficient, faster and more effective (even if outside counsel don’t always see the direct benefits). Lawyers that believed “lawyers are different” from other corporate functions are going to be passed by the clients who view that attitude as a way to avoid accountability. Legal Operations, and all that it entails, is here to stay. I expect both in-house lawyers and law firms to continue to work more collaboratively on the delivery of legal services to clients, with less friction.

That’s my list. I could go on, but I can only be so wrong. Better to keep it simple. And please remember, these are not promises, they are simply predictions—frequently wrong but never in doubt!

I wish you and all your loved ones a healthy, productive and blessed 2024.