Sony Music has filed a second lawsuit against music AI company Udio, mainly because the judge overseeing the first lawsuit, Alvin K Hellerstein, wouldn’t let the major expand the list of allegedly infringed recordings that was included in its original legal filing.
By boosting that list from 333 to 30,442 recordings, the potential statutory damages Sony could seek if it wins this case exceed $4.5 billion. And while there remain lots of legal uncertainties over the copyright obligations of AI companies like Udio, if there’s any chance of facing a damages bill of $4.5 billion at some point in the future, that provides a strong incentive for Udio to negotiate a licensing deal now.
Last month, Hellerstein concluded that expanding Sony’s first lawsuit by adding an extra 30,000+ recordings at this relatively late stage in the proceedings would “substantially prejudice” Udio. He then added that Sony did have the right to enforce its rights over all the allegedly infringed recordings, but that “there is no requirement that it be done in this lawsuit”.
Which Sony interpreted as the judge basically saying “if you want mega-damages just file another lawsuit”. And so, here is that lawsuit. “Consistent with the court’s ruling in the original action”, it says, Sony is “bringing this suit to vindicate our rights as to the other works Udio infringed”.
When it tried to get the extra 30,000 recordings added to its original lawsuit, Sony argued that it was Udio’s total lack of transparency over its training data that had stopped that long list of recordings being included first time round. The same point is made in the new lawsuit, alongside a note explaining that, actually, Udio almost certainly infringed many more Sony-owned recordings beyond that 30,000.
Of course, when Sony originally sued Udio two years ago, it was joined by Universal Music and Warner Music. But both the other majors have since settled their lawsuits and entered into licensing deals with Udio. In its new lawsuit, Sony tries to use those very licensing deals to back up its legal arguments.
Udio’s licensing deals with Universal and Warner prove two things, Sony’s new lawsuit insists. First, “that a functioning market exists for licensing sound recordings for use in connection with generative AI”. And second, that “Udio recognises that using copyrighted sound recordings for this purpose requires permission”.
Despite its licensing deals and various moves to become a friend of the music industry, Udio - like most AI companies - will argue that copying lots of music for AI training is ‘fair use’ under US copyright law, and therefore no permission is actually required from creators and rightsholders.
Sony’s new lawsuit deals with all that head on. Rulings in other AI copyright cases in the US suggested AI training is not fair use if an AI company uses pirated content, and that a fair use defence may be defeated on market dilution grounds, ie AI-generated music reduces the value of human-generated music.
To that end, Sony notes that Udio obtained many of the recordings it used to train its model “by unlawfully 'stream ripping' them from YouTube in circumvention of the technological measures designed to prevent exactly such unauthorised access”. So, Udio used pirated content.
Meanwhile, Sony adds, since it’s first Udio lawsuit was filed, it’s become clear that “synthetic musical outputs” from music AI models “inevitably saturate the market with machine-generated content that will compete with, cheapen, and ultimately drown out the genuine sound recordings on which the service is built”. So, Udio causes market dilution.
The new lawsuit then directly addresses the fair use defence. “The doctrine of fair use promotes human expression by permitting the unlicensed use of copyrighted works in certain, limited circumstances” it argues, but “Udio offers imitative machine-generated music - not human creativity or expression”. So it’s not fair use.
Udio, of course, will hit back at all these claims as it has with the original Sony lawsuit, which continues to work its way through the courts.
The assumption is that Sony will ultimately follow Universal and Warner into agreeing a licensing deal with Udio - with the hope that lawsuits like this will motivate Udio to offer a better deal - but in the meantime, that’s yet another AI copyright lawsuit to add to the pile.