As mentioned in my last post about the record labels’ lawsuits against GAI companies Suno and Udio, I will generally focus on the latter case. Both cases are almost identical, but because UMG et al. v. Ucharted Labs Inc. is at the SDNY (in the Second Circuit), those proceedings may be followed by other courts with considerably less copyright law precedent.

Udio’s answer filed on August 1 relies substantially on the premise that there is no cause of action whatsoever. The developer intends to show that “This lawsuit…seeks a genuinely unprecedented result: a ruling that it is actionable copyright infringement, not fair use, to have copied Plaintiffs’ works as part of the process of developing a new technology, even though the ultimate outputs of that new technology are themselves non-infringing.”

The list of counter-factual evidence Udio forecasts is too long to summarize, but the heart of its legal argument at this juncture is that 1) statute explicitly bars protection of musical style; 2) its AI training process entailed learning about music rather than copying protected sound recordings; and 3) because the product’s outputs are largely (or entirely) non-infringing, the purpose of producing “new” music is “what copyright law is designed to encourage, not prohibit.” The defendant also alleges that the recording industry’s claim is invalid on the basis that it has “misused copyright law” as part of a longstanding tradition of stifling competition. So, we have a ballgame that’s going into extra innings, and there will be plenty to say about the details as they emerge.

For now, I take issue with a few premises inherent to Udio’s answer. The first, which I have already stated a few times, is that even if every song output by Udio is “new” as a matter of law, the fact that none of these outputs is a work of “new authorship” as a matter of law militates against Udio’s implication that its product expands the purpose of copyright in general. And as stated, if that is correct, this should militate against a finding of fair use.

Second, despite the fact that Udio can and does point to uses of its product by creators who are plausibly engaged in authorship is, at best, a difficult basis on which to argue that the primary purpose of the product advances authorship. For one thing, the business model appears to be based largely on providing a music toy for consumers, not a tool for creators. Next, even where Udio may be used by professional music creators, the extent to which this fosters new authorship is a case-by-case consideration—one that relies on still-developing doctrine around the use of AI and authorship.

Third, even if Udio could prove allegations of relevant, anti-competitive practices among all the record labels (and I do not mean to suggest they can), the court must remain focused on the interests of individual creators—especially the next generation of music makers. The labels’ argument that the outputs compete with demand for existing sound recordings could be read as protectionism of existing catalogs but should be considered as to whether Udio competes with, or even obviates, the need for new human authorship in music. If so, this is categorically not what copyright law is designed to foster.

As stated in a few posts, and in comments to the Copyright Office, the unique challenge presented by GAI is that rather than pose a threat to the interests of specific authors’ works, it poses a potential threat to authorship itself. In this light, Professor Jane Ginsburg, in a new paper about the state of fair use jurisprudence, discusses two points that stand out for me at the moment. First, she describes the nature of a use-based fair use analysis (as applied in Warhol), which should not “untether” the fair use protection for a use other than the one narrowly ruled on by the court. Second, she notes that the courts may look beyond the “explicit direction” of the fair use statute to consider a factor like broad effect on authors’ careers—or even the potential for other unlawful uses like forgery or fraud.

With regard to use-based analysis, Ginsburg forecasts the uncertainty in adopting a per se fair use rule for machine learning because the consideration of fair use of the inputs may turn on the nature of the outputs. “If an AI system ingests multiple images of apples, including Cézanne’s depictions (let’s assume Cézanne’s works were still under copyright) its training data will enable the system to “know” both what an apple looks like, and what a Cézanne apple looks like. The fair use inquiry may depend on whether the user asks for an apple, or for a Cézanne apple,” Ginsburg writes.

Perhaps more directly applicable to the labels’ case against Udio, Ginsburg states in regard to image-generating AIs and fair use factor four, the effect of the use on market value:

… even under a solely work-based interpretation of section 107(4), one may observe that the wholesale copying of an artist’s works into training data in order to enable stylistically similar outputs jeopardizes not only the artist’s future employment or commissions, but also devalues the actual works copied, because the image-generation program can produce outputs that compete with already-created works as well.

That same rationale would seem to apply to the labels’ evidence that Udio can output sounds which are substantially similar to famous and protected sound recordings. So, while the defendant is correct to say that copyright does not protect style and that music production relies substantially on mixing and matching a finite combination of styles, arrangements, etc., that premise, both statutory and judicial, is derived from a copyright history that has only ever included human artists in “competition” with one another. Consequently, the courts have latitude to find that it is in fact the AI developer who is seeking the novel conclusion that its machine furthers the purpose of copyright law.

As I say, there will be plenty of details to follow and plenty of considerations to nerd out on, if one is so inclined. And for better or worse, I am so inclined. Stay tuned (pun intended).