Category: Art

Major Record Labels Sue Gen AI Devs Suno and Udio

The most prominent copyright lawsuit against Generative AI (GAI) to date dropped yesterday when the major record labels filed complaints against developers Suno and Udio in the District of Massachusetts and the Southern District of New York respectively. This is going to be one to watch, not just because of the size of the plaintiffs and the potential for significant damages, but because the complaints, in my view, present an intriguing combination of the legal questions addressed in most, if not all, of the other lawsuits filed against GAI companies.

For instance, in NY Times v. Open AI and Concord et al. v. Anthropic, both plaintiffs make a compelling prima facie case for copyright infringement by presenting large bodies of evidence showing either literal copies or substantially similar material output by the defendants’ systems. This is distinct from some of the visual artists’ lawsuits against Gen AIs like Midjourney and DALL-E where the allegations of infringement entail more inference than direct evidence of specific works copied. Not that the visual GAIs don’t output literal copies of protected works—they do—but I do not believe a plaintiff has yet filed suit with a body of that kind of evidence.

Interestingly, the evidence presented by the record labels to show that their protected sound recordings were used to train Suno and Udio encompasses a combination of substantially similar copies in the outputs, a measure of inference, and a number of self-incriminating statements by the defendants themselves. This includes the unwise assertion made by every GAI developer that machine learning (ML) is fair use, but I’ll come back to that.

Regarding direct evidence, both complaints cite several examples whereby, with a few general prompts, the systems will output music that is substantially similar to famous songs. “These similarities are further reflected in the side-by-side transcriptions of the musical scores for the Suno file and the original recording. These similarities are only possible because Suno copied the Copyrighted Recordings that contain these musical elements,” the Suno complaint states.

See cover image from plaintiffs’ transcriptions. “Red markings in the transcriptions indicate notes that are the same as the original in both pitch and rhythm, where orange markings indicate notes that use either the pitch or the rhythm of the original, but not both.”

Akin to the NYT and Anthropic cases, the logic holds that if this material comes out of the system, then it was obviously fed into the system. More broadly, inference tells us that millions of sound recordings were used in ML to enable Suno and Udio to so effectively produce a wide variety of music in so many styles. And that’s where the self-incriminating comments come into play.

As has been reported elsewhere, Suno investor Antonio Rodriguez, is quoted in the complaint as saying, “…honestly, if we had deals with labels when this company got started, I probably wouldn’t have invested in it. I think they needed to make this product without the constraints.” Yikes. Notwithstanding the questionable claim that copyright infringement is necessary for GAI development, Rodriguez’s statement reads as an admission that of course they willfully infringed copyrights—that he went into the venture knowing he would help finance litigation.

Similarly, Udio’s CEO David Ding is quoted saying that his system needs to “train on a large amount of publicly-available and high-quality music…[the] best quality music that’s out there…obtained from the internet.” As the complaints note, “publicly-available” is a term the GAI companies like to use in PR statements, but this is not synonymous with the “public domain.” Most in-copyright works are publicly available, and Ding’s statement that sound recordings were “obtained from the internet” is, again, acknowledging that unlicensed copying—and a lot of it—occurred for the purpose of training the Udio model.

All Eyes on Fair Use

When the first Gen AI lawsuits dropped, I thought the developers might try harder to claim that no copyright infringement occurs on the basis that what’s happening inside their machines does not “copy” protected works. All that nonsense about machines “learning” the same way human artists learn, when combined with an invisible or complex process, seemed to be leading toward that argument in court. Instead, whether the evidence of copying is too obvious, or the developers are too hubristic, it appears—certainly in this case—that the Gen AI companies are stipulating to a valid infringement claim and jumping straight to a presumption that they will be rescued by a fair use defense.

As mentioned above, and as the complaints note, the assertion of fair use is itself a tacit admission that a prima facie claim of copyright infringement exists. While it will only be fun to unpack the real fair use responses when Suno and Udio submit those documents to the courts, the labels’ complaints already present rationales as to why all four factors disfavor a finding of fair use. Going forward, the fair use discussion will emphasize factors one and four—the purpose of the use and the potential market harm to the works used, respectively.

The most compelling discussion will address the extent to which the courts find that Suno and Udio’s use of the works serve a “transformative” purpose under factor one. Not only will this consideration have major implications for every Gen AI developer, but it will also be the ideological hill on which the pro and anti-copyright forces will clash. The ongoing (if repetitive) debate that pits alleged progress against allegedly outdated copyright law may be won or lost on the transformative test in these cases.

On that subject, both complaints use the language “far from transformative” to describe Suno and Udio—and I agree. Just because Gen AI is novel, or even impressive, these products do not make transformative use of protected works in a manner that furthers the purpose of copyright law, which is to foster, not replace, human authorship. This essential consideration for finding transformativeness is tacitly acknowledged by the Gen AI lobbyists and cheerleaders who insist that “copyright law must change” in for the sake of Gen AI. If the law “has to change,” then clearly, the law does not support the conduct at issue. These and other contradictions will be exciting to follow as these cases proceed.

NYS Assembly Led Down the Primrose Path on eBooks Again

NYS Assembly

In December 2021, New York Governor Hochul recognized that she must veto a bill that would have prescribed the manner in which publishers may provide eBooks to public libraries. It isn’t necessary to rehash the details of that legislation—I wrote several posts about eBook bills—but only to restate the reason for the veto:  the law was unconstitutional. Why? Because state laws proposing to dictate terms for making in-copyright works available, even for libraries, is preempted by federal law.

Nevertheless, Assemblyman Angelo Santabarbara has introduced a new bill (A10544) that, although its mechanisms are different from the 2021 bill, is still unconstitutional. In fact, the operative part of the bill which, for instance, prohibits digital rights management (DRM) technology, would have the effect that a library is free to make eBooks available in any manner it sees fit and without limits of any kind. This plainly violates the Copyright Act. Even if the purpose of the proposal were well-founded in service to the public—and it is not—the states are simply not permitted to pass their own laws governing the terms under which copyright owners may distribute works to the market.

In addition to Gov. Hochul’s clear-eyed veto in 2021, related eBook bills have been proposed, litigated, and shot down in several states, begging the question as to why lawmakers seem determined to die on this meaningless hill. As discuss in this post examining the mid-sized library system serving my region in New York, there is no evidence suggesting that the public is underserved or that the current licensing regimes are so onerous as to harm the operation of libraries. Frankly, even if licensing were onerous, these laws would still be unconstitutional, but the combination of federal preemption and pointlessness does make one wonder–but not really.

These eBook bills are all variations on the same thematic effort by the same lobbying groups seeking to push an anti-copyright agenda using the Trojan Horse of the public library. Copyright antagonists couldn’t prove DRM, governed under DMCA Section 1201, was unconstitutional, so they try chipping away at the principle through state legislatures, masked beneath the white hats of institutions we all love. And indeed, because I do love libraries, I continue to hope that they will stop running interference for organizations that have neither libraries’ nor readers’ nor certainly authors’ best interests at heart. If nothing else, continuing to introduce bills that run afoul of Article I Section 8 is a waste of everybody’s time.

Photo by: vasiliybudarin

Book bans deserve opposition, but not debate.

book bans

The Authors Guild, of which I am a member, has filed an amicus brief asking the Eighth Circuit Court of Appeals to affirm a lower court ruling that Iowa’s book ban law is unconstitutional. And of course it is. The subject barely warrants legal examination because it is impossible to draft a content-focused general book ban law that does not violate the First Amendment. And while there is reason to expect that ruling to be upheld on appeal, this cautious optimism does little to resolve the question as to why book ban efforts are more energized than they were 10-20 years ago.

Based on the titles highlighted in the AG brief, it is fair to assume that once again, conservative extremists have their righteous undies in a bunch over the inherent “evil” of sex. Iowa legislators join those in Texas, Florida, Arkansas et al. in the view that both fiction and nonfiction works that in any way confront, describe, or allude to sex, or sexual identity, are so dangerous to American youth (even teenagers who are having sex) that they must be removed from distribution.

Fear of sex is nothing new for the religious right, of course, but the current increase in book banning efforts appears to be animated by a reaction against wider social acceptance of a broader spectrum of sexual identity—i.e., a moralizing backlash against openly gay, nonbinary, and transgender persons. The sweep also includes reactions against subject matter dealing with race, and if (God forbid) any book addresses both race and sex, the earth will shake. As such, the novels of Nobel Laureate Toni Morrison make everybody’s list.

In public statements, politicians advocating book bans will portray these laws as necessary to protect children from age-inappropriate sexual content, but there is no truth to this implication, either in practice or law. Not only is there no evidence that teachers are reading Bukowski to third graders, but laws like Iowa’s are sweeping, content-focused bans for all libraries serving all students regardless of age. As old as the recurring theme of sex in book bans is the axiom that book banners, by their very nature, are illiterate. There is no more sense in arguing constitutional principles with these people than there is in talking cosmology with a gibbon.

Sure, one could explain for the umpteenth time that the five freedoms of the First Amendment very intentionally proscribe all rationales for state censorship. But for whose ears do we repeat this? Do the legislators endorsing these statutes know even a fraction of the history behind the Bill of Rights? Can they so much as theorize why the Constitution rejected the underlying frameworks of England’s censorious laws? Can they trace any portion of the narrative from the 14th century Lollards, through Henry VIII, Milton and Aeropagetica, royal patents entangled with the politics of the Church, the Puritan adventure to North America, and the next 160 years of history to get to the Constitutional Convention?

I ask because the constitutional framers (some who were total horndogs, BTW) knew that history from reading books! As such, the First Amendment, in 45 words, neatly encompasses centuries of lessons learned about successful and failed states to form a critical building block in the Plan for a nation unlike any that existed before or since the U.S. Constitution was ratified. In short, no book banning allowed—not even for allegedly “protecting the kids” from sex, an effort which, like book banning itself, has a history of spectacular failure.

Consider this detail:  the AG brief notes that among the prohibited books is “Laurie Halse Anderson’s Speak, which has helped countless teens work through the trauma of sexual assault.” By what twisted logic does banning such a book “protect” anybody from anything? Legislators with any real moral judgment should be focused on the “countless victims” of sexual assault, not the books that might help them heal. But again, you can’t explain such things to gibbons. This is what happens when alleged principles are unmoored from education—e.g., when one censors books without reading them. Any position taken to extreme will inevitably cross the boundary where the advocate contradicts his own core values, proposing unworkable, unconstitutional laws that can only be sustained by hypocrisy.

And I get it. I sympathize with the emotion. After all, it would be short work to argue that religious exercise has been the cause of more violence and depravity throughout history than all the smuttiest literature ever written. Yet, despite the mountain of evidence one might compile to support that thesis, the First Amendment is clear:  religious exercise may neither be prohibited nor compelled. And so it is with speech. It’s called democracy.

Photo by: mpalis