The AI music generators Udio and Suno both filed their Answers in their respective lawsuits brought by the music labels. In their Answers, the two companies, both represented by Lathan & Watkins attorneys, make a forceful fair use defense. The defendants go even further: they raise a defense of copyright misuse by the music labels based on their allegedly anticompetitive use of their copyrights. Wow.
Fair Use Defense From the Suno Answer:
Plaintiffs explicitly disavow any contention that any output ever generated by Suno has ever infringed any right that they own. Id. While the Complaint includes a variety of examples of outputs that allegedly resemble certain pre-existing songs, id. ¶¶ 51–67, it goes out of its way to say that the Complaint is not alleging that those outputs constitute actionable copyright infringement, id. ¶ 50 (“Plaintiffs are not . . . alleging that these outputs themselves infringe the Copyrighted Recordings”).
That concession will ultimately prove fatal to Plaintiffs’ claims. It is fair use under copyright law to make a copy of a protected work as part of a back-end technological process, invisible to the public, in the service of creating an ultimately non-infringing new product. Congress enacted the first copyright law in this country in 1791. In the 233 years since, no case has ever—not one single time—reached a contrary conclusion. Every single time the question has been presented—and it has been presented over and over and over again—the ultimate conclusion has been that making an “intermediate” copy of a protected work, in the service of generating non- infringing outputs, is permissible, not actionable. See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (fair use to copy all of the books in numerous university libraries in order to create a commercial, full-text searchable index of the assembled corpus); Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (fair use to copy essentially all of the images on the open internet and show thumbnail versions to users, in the service of creating image-search functionality); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) (fair use to copy student papers into a plagiarism detection tool). The outcome has been no different when the copying has been done in the service of creating an ultimate output that competes with the plaintiff copyright owner’s own product. See, e.g., Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) (fair use to copy copyrighted operating system to create unauthorized but non-infringing video game in direct competition with proprietor’s own games); Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021) (fair use to copy protected aspects of copyrighted computer software to create a directly competing product).
This lawsuit thus 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.
Copyright Misuse Defense in Suno’s Answer
Plaintiffs’ claims are barred, in whole or in part, by the doctrines of copyright misuse and unclean hands. The defense of copyright misuse applies when a defendant can prove one of the following: (1) a violation of the antitrust laws; (2) that the copyright owner otherwise illegally extended its monopoly; or (3) that the copyright owner violated the public policies underlying the copyright laws. The effect of a finding of copyright misuse is to preclude enforcement of the copyright or copyrights at issue during the period of misuse, and the defense is available even if the defendant has not itself been injured by the misuse. On information and belief, Plaintiffs have engaged in anticompetitive activities that extend an unlawful monopoly over the production and commercialization of music, which by itself and/or in connection with other conduct satisfies each of the three alternative prongs above.