Now that the major labels are accusing music AI companies Suno and Udio of stream-ripping, as well as straightforward copyright infringement, the AI start-ups are seeking to intervene in one of the highest profile stream-ripping legal battles to date, the one involving the majors and stream-ripper Yout.
The dispute between the majors and Yout, and the majors and the AI companies, are quite different. However, Suno and Udio fear that the existing ruling in the Yout case sets a precedent that could be problematic in their legal battle with the music industry.
And, the AI companies argue, problematic too for anyone else relying on the fair use principle under US law when making copies of copyright protected works without rightsholder permission.
The majors v Yout case “is not about fair use”, the AI companies admit in a new legal filing with the US Second Circuit Appeals Court. However, a previous ruling in the Yout case, which the stream-ripper is currently appealing, “jeopardises the fair use doctrine by misconstruing anti-circumvention provisions in the Digital Millennium Copyright Act”.
The major labels accuse Suno and Udio of copyright infringement, because both companies made unlicensed copies of recordings owned by the music companies when compiling datasets to train their respective generative AI models. Suno and Udio argue that AI training constitutes fair use under US law, meaning they didn’t need to get permission from the majors before using their recordings.
In another case involving copyright owners and an AI company – in which a group of book authors sued Anthropic – the judge ruled that Anthropic’s use of existing books to train its Claude AI model was fair use, but only if it sourced those books from legitimate sources.
Anthropic had, in fact, downloaded millions of ebooks from piracy sites. As a result it faced possible trillion dollar damages and, to avoid that, agreed a $1.5 billion settlement with the authors’ lawyers.
Following that ruling, the majors asked to amend their Suno and Udio lawsuits, adding the allegation that they both sourced their training data by stream-ripping music from YouTube. The music industry considers stream-ripping to be piracy and has previously taken legal action against various stream-ripping websites.
With Yout, it was actually the stream-ripper that sued the majors after they tried to get the stream-ripping service delisted by Google.
In the resulting legal battle, the majors argued that when Yout allows users to grab permanent downloads of temporary YouTube streams, it is circumventing technical protection measures – or TPMs – put in place by YouTube to stop the downloads. And circumventing TPMs violates the US Digital Millennium Copyright Act.
In 2022, a US court sided with the majors and agreed that Yout was indeed circumventing TPMs in violation of the DMCA. Yout has been appealing that ruling ever since via the Second Circuit Appeals Court.
The majors argue that Suno and Udio similarly violated the DMCA when they ripped music files off the YouTube platform, which opens the two AI start-ups to legal liabilities even if a court was to ultimately conclude that any subsequent copying of the music files during the Suno and Udio training processes was fair use.
The AI companies disagree. They argue that the DMCA distinguishes between TPMs that restrict access (access controls) and those that restrict copying (copy controls), and only prohibits the circumvention of the former. Suno and Udio say they only circumvented the copy controls, not the access controls. And that copying doesn’t violate the DMCA TPM rules and is also fair use, so doesn’t infringe copyright either.
They claim that when passing the DMCA, Congress was careful to distinguish between access controls and copy controls because it didn’t want the new rules against circumventing TPMs to inadvertently restrict fair use copying.
In the Yout dispute, the distinction between access controls and copy controls wasn’t important, because the stream-ripper is being sued for providing a service that allows others to circumvent TPMs, rather than because it directly circumvents TPMs itself.
And, the AI companies explain in their court filing, in that scenario, the rules against circumventing TPMs “apply with equal force to both access controls and copy controls”.
However, when making its judgement against Yout, the court assumed that the stream-ripper was circumventing TPMs designed to restrict access rather than copying – based, Suno and Udio argue, on a misguided definition of the word ‘access’.
That is problematic for the AI companies, because they have circumvented the same YouTube TPMs, and they need those TPMs to be classified as restricting copying, not access, in order to avoid liability under the DMCA.
The court in the Yout case, the AI companies now argue, “failed to recognise the critical distinction between access controls and copy controls”.
“And”, they add, “its holding that YouTube’s download-prevention mechanism is an access control was based on a blinkered interpretation of the word ‘access’ that did not sufficiently account for the broader statutory context, and would unravel Congress’s attempt to define access controls and copy controls separately”.
They go on, “that threatens to undo Congress’s considered decision to harmonise” the rules around TPMs “with fair use, and could potentially expose countless fair users to serious penalties for violating the DMCA, even if their activities fall well within the bounds of fair use”. By fair users, they really mean Suno and Udio, of course.
To that end, the AI companies say, “this court should correct that error”.
