Music genAI company Suno has told a US court that the recent attempt by the major record companies to amend their lawsuit against the AI business is nothing more than a sneaky “gambit” to try to “evade application of the fair use doctrine” to Suno’s AI training processes. And - reckons Suno - it’s a gambit that relies on an incorrect interpretation of American copyright law.
Last month the majors requested permission to amend their Suno lawsuit to include new allegations that the AI company sourced music to train its AI model by stream-ripping audio from YouTube. This, according to the majors, means Suno sourced its training content by committing music piracy.
The proposed amendments, according to Suno, are the majors’ response to “the burgeoning consensus that using copyrighted content to train AI models is perfectly lawful”. Despite that burgeoning consensus the majors hope they can still win their Suno litigation on the basis that the AI company’s “acquisition of music violates a separate statutory prohibition” to which “fair use is presumptively not a defence”.
In US copyright law there is a statutory prohibition that says it is illegal to circumvent ‘technological protection measures’ put in place by digital services to restrict access to content stored on their platforms. It’s that prohibition the majors now argue Suno violated. However, Suno reckons, that prohibition doesn’t apply to it ripping audio off digital platforms like YouTube.
In their original lawsuit, the major labels claimed that Suno infringed their copyrights when it made copies of their recordings without permission in order to train its AI model. Suno, like most AI companies accused of copyright infringement, insists that AI training constitutes fair use under US law. Which means it didn’t need permission from the majors to make copies of their recordings.
There are numerous lawsuits working their way through the US courts where copyright owners have accused AI companies of copyright infringement. In two prominent cases initial judgements have been made that have supported the fair use argument. Both involved the authors of books, with Anthropic and Meta claiming that copying the writers’ books as part of their AI training was fair use.
In both cases, the judges ruled AI training is indeed fair use, which is why Suno claims that there is a “burgeoning consensus” that AI companies can employ the fair use defence in copyright cases.
However, that’s something of an exaggeration. The legal debate over AI training and fair use is far from resolved, especially in music cases. That said, the Anthropic and Meta cases were widely perceived to be a good result for the AI sector. But with one big proviso that could be bad news for AI companies
In the lawsuit brought by the authors against Anthropic, the judge said fair use only applies if an AI company curates content for training from legitimate sources. The problem was that Anthropic had downloaded millions of ebooks from piracy sites.
This meant that - despite winning on fair use in its legal battle with the authors - it still faced a trillion dollar damages claim because of the statutory damages for copyright infringement that exist in US copyright law. The AI company - which raised a staggering $13 billion in investment in September - quickly struck an agreement with the authors’ lawyers to pay $1.5 billion to settle that claim.
Since then, numerous copyright owners who have filed lawsuits against other AI companies in the US are now seeking to amend those lawsuits to include allegations that the defendant curated training content from illegitimate sources.
If Suno had downloaded music from a piracy site or illegal file-sharing network in order to build its training dataset, there would be a direct parallel with the authors v Anthropic case. However, it’s believed Suno sourced its training content via stream-ripping, mainly ripping audio from YouTube.
Does that mean Suno curated its training content from piracy sources? The music industry has long considered stream-ripping to be music piracy and has pursued legal action against various providers of stream-ripping services over the years.
In the US, record labels have mainly argued that stream-ripping circumvents the technological protection measures, or TPMs, put in place by platforms like YouTube to stop users from downloading permanent copies of temporary streams, and US copyright law prohibits circumventing such measures.
To that end, the majors want to amend their Suno lawsuit adding allegations of stream-ripping, and accusing the AI company of circumventing TPMs in violation of US copyright law. However, Suno insists that the specific rules around TPMs in the US Digital Millennium Copyright Act do not apply in this case.
It argues that the DMCA distinguishes between access controls, “which prevent users from viewing, reading or listening to works without proper authorisation”, and copy controls “which protect the copyright holder’s exclusive rights, like reproduction or distribution, after lawful access has been obtained”. It then only prohibits the circumvention of the access controls.
Suno argues that it is accused of specifically circumventing YouTube’s copy controls not its access controls. Which might constitute copyright infringement - which Suno would respond to with its existing fair use defence - but it does not violate the rules around TPMs.
To back up its interpretation of the law, Suno also claims that - when the DMCA was being written in the 1990s - the majors tried to persuade US Congress to include wider prohibitions when it comes to the circumvention of TPMs. Had it done so, Suno’s conduct would likely be violating the rules. But Congress opted for narrower prohibitions which, Suno claims, means it’s off the hook.
Doubtless the majors will respond with the typical bombast seen in these sorts of lawsuits.
However, there’s another dimension to this debate, because the legal back and forth is happening alongside reported licensing talks between the majors and the AI company that could ultimately render this entire legal battle redundant.
Whether or not that will bring a halt to this lawsuit - or other similar ones - is something that only time will tell.