Learning is not Stealing: Suno, Udio v. The Major Labels

Watch it or read it. Or both:

Yesterday, as I was composing a post about AI on my Mixerman Facebook Page, this news dropped in WIRED:

“A group of music labels including Universal Music Group, Warner Music Group, and Sony Music Group has filed lawsuits in US federal court on Monday morning alleging copyright infringement on a “massive scale.”

The plaintiffs seek damages up to $150,000 per work infringed.”

Further along in the article:

“In the complaints, the music labels state that they were independently able to prompt Suno into producing outputs that “match” copyrighted work”

Okay, first of all, “$150,000 per work infringed” are statutory damages. That’s what you sue for when someone steals your work but didn’t make sufficient monies to warrant damages. This is an important part of Title 17 Copyright Law, because it prevents people from infringing with impunity first and paying later only if their efforts were successful.

There’s a very good reason why the labels are suing for statutory damages. There are no actual monetary damages in this case, as evidenced here from The Verge:

“One song generated by Suno titled “Deep down in Louisiana close to New Orle” [sic] replicates the lyrics and style of “Johnny B. Goode” by Chuck Berry. Another song called “Prancing Queen” generated using the prompt “70s pop” contains lyrics to “Dancing Queen” by ABBA — and sounds remarkably like the band.

Okay. This one is going to require some unpacking.

First, I can blatantly steal from existing records in my songs, and it can’t begin to qualify as infringement until I publish it (release it publicly). Publishing the work is a critical component to infringement. If it merely exists on my computer and in my home, then it doesn’t constitute infringement. When you create a song on Suno or Udio, it is a private creation until you decide to publish it, which then makes it publicly available. Without publishing, there is no infringement.

I can also record and produce cover songs and it’s not infringement unless I publish the work without first obtaining a compulsory license from the Harry Fox Agency. The compulsory license allows me to pay the copyright holder at a statutory rate for each sale of my cover.

I can also write parody songs all day long, and I can publish them with permission from the copyright holder, (Fair Use also comes into play here), but again, unless I publish the parody song, there can be no claim of infringement.

So you see the problem here, right? The Major Labels in this scenario, went our of their way to prompt Suno and Udio to Produce what they deemed an infringing song, and even fed it lyrics to help it do it. And given the hit or miss nature of how Suno and Udio work, it may have taken them a ridiculous number of attempts to come up with something that they could claim sounded infringey.

If the Majors chose to publish that work, then they would be the actual infringer here. And if they didn’t publish it, then there was no infringement in the first place. And while the Producer of an infringing work can certainly be named in an infringement suit, they have to have a part in the publishing of the work in order to be held accountable. Merely producing it isn’t enough. (This is what Indemnification clauses are for in Producers contracts).

So, let’s break down everyone’s role in this. The Major Labels are suing as the Copyright holders of the work. Suno is ostensibly the Producer of the works. And the Major Labels, are also the infringers (if they actually published the work), and are now suing the Producer of the infringey work that they purposely created.

Let me put that more simply.

The infringer is also the copyright holder and is trying to hold the Producer accountable for what they did to themselves.

On what planet does that make any sense?

And then there’s the whole issue of infringement being in the ear of the beholder. A song can sound similar to another song, and that doesn’t necessarily constitute infringement—that’s ultimately for a jury to decide. You can only copyright two things. Lyric and melody. Style and chord progressions aren’t protected (and don’t get me started on the atrocious Blurred Lines verdict). If the Major Labels fed Suno infringing lyrics, then wouldn’t they be the ones breaking the Terms of Service, and therefore wouldn’t they be the sole infringers here?

Of course, this suit is not about copyright infringement. That’s a ruse. There is no case for that. Certainly not in the instances where they were the actual infringers, because you really can’t infringe against yourself. And if they didn’t hit publish, there was no infringement either. So, the case is moot either way. I wouldn’t be surprised if the lawsuit were dismissed on the first day. No. This is about something else entirely. This is about the Majors getting the AI companies, Suno and Udio, to reveal their methods of training their AI, and they are suing, so as to use the Discovery process to do it. I present to you exhibits A, B and C.

Mitch Glazer, CEO of the RIAA said in a press release: “Unlicensed services like Suno and Udio that claim it’s ‘fair’ to copy an artist’s life’s work and exploit it for their own profit without consent or pay set back the promise of genuinely innovative AI for us all.”

Of course, they aren’t copying an Artist’s work. The AI is learning music, in particular, music that people like. I have nothing against the RIAA, but that comment is misleading and outright wrong. Next exhibit. From the Washington Post:

“Generative AI tools like chatbots, image-generators and song-generators are built by ingesting huge amounts of human-created content. The record companies allege that Suno and Udio used songs they didn’t have the rights to when they trained their AI algorithms”

This one confuses me. If I Stream music, then it’s paid for. The AI is merely listening, so how does one make the argument that Suno and Udio are doing anything other than playing paid for music in the presence of their AI in order for it to learn from it?

Then there’s this quote, again from WIRED.

“Many leading generative AI companies are under intense scrutiny for how they train their tools.”

Indeed. The Major Labels want to force the AI companies into first, admitting that they train their AI with Copyrighted Works (Der!), so that they can then turn around and make the case that the AI companies should have to license their entire catalog for the purpose of training the AI. This wouldn’t change infringement laws, and in fact, a settlement wouldn’t produce new law either. If the AI companies were to acquiesce to the Majors, there will be suits to come from other smaller record companies, and from individual Artists. And then what of new AI companies that emerge who have no such agreement with anyone? If someone, a person, produces an infringing work with Suno, that person can surely still be sued. The Majors basically want the Producers (the AI companies) to license their entire catalog, as a way to indemnify these AI generative Producers from their role in any possible future infringements. It’s kind of like when the mob comes to your business and offers you protection.

Also from WIRED:

“This can and should be achieved through the well-established mechanism of free-market licensing that ensures proper respect for copyright owners.”

There’s the crux of it all right there. They want a piece of the action, and frankly, I don’t think they’re entitled to it, because none of that money will actually reach the songwriters or the Artists. There is no mechanism in existing contracts going back many decades that takes into account this scenario. The Labels will get all the licensing monies, and the beneficiaries will be the Major Label Corporations and their stock holders, and that’s it.

The more information that we feed our AI, the more likely the AI is to create unique works, and the more you would have to dilute the total pool of money for the Artists that the RIAA and the Major Labels are purportedly trying to protect. So to require licensing by the AI companies will only cost the consumer money, which will pay the Major Labels for a catalog that is so vast, it already covers every musical possibility there is. Or at least close to it.

AI learns music precisely the way humans learn music. It listens. If you feed AI everything, then AI isn’t stealing from anyone in particular, it’s evaluating patterns, and determining what people like based on those patterns. If, on the other hand, we don’t feed AI all our works, then AI can’t learn what we like, and it can’t figure out the techniques that would make it good at making music, and one could argue it’s more likely to infringe.

Conversely, if we only feed AI works from the public domain, then AI is only going to spit out music that sounds like it was written 100 years ago. Of what use is that? To suggest that AI is stealing from all Artists in history by merely listening to music would be to suggest that any human who writes a song that is even remotely accessible is stealing from all Artists in history. This is kind of a given. We accept that reality where it comes to humans. There are only 12 notes. We all build on what came before us where it comes to the music. It’s an incremental process. We all write the same themes in our lyrics, and use similar rhyme combinations (“fire”/ “desire” anyone?), and touch on similar melodies. To allow AI to “listen” to music can’t, and shouldn’t, be deemed infringement, in and of itself. Listening and learning are not stealing. Mimicking good songwriting techniques isn’t stealing. Stealing is stealing.

Even if you don’t buy my arguments here. Even if you believe that to feed AI copyrighted music should be considered infringement and should require a license so as to enrich the Major Labels and nobody else, it would be a colossal error—an “own goal,” as it were—to prevent US companies from training their AI with all our available US works, copyrighted or otherwise. If we hamstring our AI companies from feeding it everything that our own artists have ever produced, then we are allowing countries like China and Russia to do it first. That, my friends, can’t happen. We cannot allow the bad actors in the world, who already steal our creative works with impunity, to have the upper hand in training AI with the very works they already steal. As if that’s not bad enough, these despot-lead countries will then turn around and sell the fruits of our collective labor right back to us through their powerfully developed AI creation tools. You want the countries that already steal our work to have the upper hand in technology that’s both powerful and inevitable?

Again, in what world does that make any sense?

There is nothing truly original. I would say that copyright can’t even survive the amount of material that is going to be generated in the coming years. At some point, you can’t produce something that doesn’t infringe within a 12 note scale, and we are coming very close to that point. This is true whether we allow our AI companies to feed it existing copyrighted materials or whether we allow China to do it first. AI generated music, and AI music making tools, are going to happen.

Everyone needs to see the bigger picture here. This is all a money grab. The Major Labels do not give a fuck about you or your creations, nor the creations of their own Artist catalog. They aren’t trying to protect any creation in particular. They want to collect money on the backs of all creators, which really, is the same as what the AI companies want to do. Meet the old boss, same as the new boss (you see what I did there?). So, the Majors are making a play at a money grab for themselves, based on the false idea that any music that’s worth listening to, is somehow purely original.

The freak out is real. But what’s the solution? The solution certainly isn’t for one corporation to pay another corporation for the right to learn from the human consciousness of art. That doesn’t protect anyone.

The solution here is for Congress and other governments to come up with the rules of the road, particularly where AI learning is concerned, and how we are all going to get paid as our ability to actually work dwindles. Unfortunately, there’s no hope for that happening, because it’s beyond our political capabilities at this time, which is why there’s really no stopping it. The status quo shall prevail. By the time a government or a judicial system decides to tell the AI companies “no,” the AI will have already learned what it needs to learn, and there is no putting that genie back in the bottle once it happens.

I’m telling you, things are going to get interesting. Perhaps crazy. Brace yourselves.

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