In May, Sony Music and Universal Music asked to massively increase the number of tracks specifically listed in their copyright lawsuit against Suno from 560 to 61,026. At more or less the same time, Sony asked to increase the list of tracks in its separate lawsuit against Udio from 333 to 30,442.
But last week the judge overseeing the Udio case, Alvin K Hellerstein, said Sony can’t increase its track list at this late stage in the proceedings. Which has prompted Suno to quickly write to the judge overseeing its case, F Dennis Saylor, to argue that he should follow Hellerstein’s lead on this point.
In a letter to Saylor, Suno’s lawyers say that “each of the considerations” that led to Hellerstein refusing to allow Sony to increase its track list in the Udio case is “equally present - or more material - in this case”. Arguably more present because, with Suno, the majors “seek to assert 60,000 additional works, twice the number at issue in Udio”.
As Suno’s lawyers also point out in their letter, the respective lawsuits filed against Suno and Udio by the majors involve “nearly identical claims for copyright infringement” in relation to use of sound recordings to train AI models without getting permission from the relevant copyright owners.
The only real difference between the two disputes is that Warner Music has since settled with both Suno and Udio, whereas Universal has only settled with Udio and is still suing Suno.
The number of allegedly infringed tracks listed in each lawsuit is important because, if the majors are successful in these legal battles, it could have a big impact on what damages the AI companies are forced to pay by the courts.
Under US copyright law, copyright owners can seek up to $150,000 per infringed work. So by expanding the list of allegedly infringed recordings in the Suno legal battle from 560 to 61,026, Universal and Sony are increasing the damages they could seek from $84 million to more than $9.1 billion.
The two majors argue that they weren’t able to provide the bigger lists of infringed recordings in their initial lawsuits because of the total lack of transparency on the part of the AI companies about what music they used to train their models.
They say the initial shorter lists were put together through “a highly manual and burdensome process”, and the more expansive lists were only possible once the AI companies had been forced to share more information through the discovery phase of each legal battle.
But last week Hellerstein ruled that, despite those claims, expanding the track list in the Udio case at this late stage wasn’t appropriate because it would “require substantial additional production and review, generate further disputes, and materially alter the scope of the case before me”.
In its letter to Saylor, Suno says that Hellerstein concluded that “Udio would be prejudiced by the inevitable effect” of the bigger track list and “the requisite additional discovery that would come with it”.
Not least because it would delay how long it takes for the court to issue a summary judgement on Udio’s core claim that AI training is fair use under US law, so it didn't need Sony’s permission to make use of its music, so the entire copyright claim should be dismissed.
Suno, the letter says, “would be just as prejudiced by delaying this litigation and postponing resolution of its fair use defence”, in fact “the disruption here would be even more significant, where, unlike in Udio, depositions are already underway and a deadline for dispositive motions has been set”.
And therefore, it concludes, Saylor should “consider” the Udio court’s decision on this particular issue and then reach the same conclusion in the Suno case.