For just over a year since Fake Drake's bum hit the music industry, executives have been debating whether genetic AI is a threat or an opportunity. The answer is both — creators are already using AI tools and already competing with AI music. But the future will be shaped by the copyright lawsuits the majors filed two weeks ago against Suno and Udio for allegedly using the labels' music to train their AI programs.
Like most tech debates, this one will be resolved in real time — Internet startups tend to think it's easier to ask for forgiveness than to get permission. Although neither Suno nor Udio have said they trained their program on major label music, the label's lawsuits highlight that both companies said using copyrighted works in this way would be “fair use.” , a defense to otherwise wrongful conduct. They're not admitting they did it – they're just defending themselves in case they did.
Whether this qualifies as fair use is much more than a million-dollar question, as legal damages can reach $150,000 per infringed work. The stakes are even higher than that, though. If the uptake of copyrighted works on a massive scale to train an AI is allowed under fair use, the music business may find it difficult to limit, control or monetize this technology.
If not, the labels will gain at least some control over these companies, and perhaps the entire nascent sector. There are other ways to limit AI, from legislation to likeness rights, but only copyright law has the kind of legal remedies that offer real leverage.
Although neither Suno nor Udio has issued a legal response, Suno's CEO Mikey Shulman released a statement saying the record labels were “back to their old book of lawyers.” The obvious reference is Napster, since most people believe that in the late 90s the music industry saw the future and decided to sue it.
That's not exactly what happened. The majors knew the future was digital—they lobbied for the 1995 Digital Performance Right in Sound Recordings Act, which ensured streaming services had to pay to play recordings in the US even though traditional radio stations didn't. they do. They just didn't want peer-to-peer services distributing their content for nothing — or having to negotiate with them while doing so. In July 2000, three months after the majors sued Napster, top executives sat down with the company to try to reach a settlement, but they couldn't agree. the labels traded as if Napster needed a license, and Napster traded as if it didn't. In the end, after a decade of lawsuits and lost business, creators and rights holders established their right to be paid for online distribution, and the music industry began to recover.
And here we are again: History doesn't repeat itself, but it does seem to rhyme. If labels were now negotiating with Suno and Udio, how much would those companies be willing to pay for rights they may or may not need? It's easy to make fun of both sides, but it's hard to know how much to charge for rights, or pay for them, before you even know you need them.
These lawsuits aren't about whether creators and rights holders should embrace or shun AI — it's coming, for better or for worse. The question, in modern terminology, is whether the embrace will be consensual and on what terms. Most creators and rights holders want to do business with AI companies, as long as it actually means business — negotiating deals in what looks like a free market.
What they fear is that tech companies are building empires on their work without paying to use it — especially to create a product that creates music to compete with them. This depends on the outcome of these lawsuits. Because if you don't have the right to say no, you can't really get to a righteous yes.
A few weeks ago, at a cultural conference organized by the German trade organization for recorded music, I heard the German Minister of Justice Marco Buschmann put this as well as anyone I've ever heard. “The moment people have the opportunity to say 'No' and to enforce that 'No,' they gain a legitimate bargaining position,” he said in a speech. (Bushman too makes electronic musicas it happens.) In the European Union, rights holders can opt out of AI absorption, which is far from ideal but better than nothing.
What happens in the US – which often shapes the global media business – may depend on the results of these lawsuits. There are two dozen AI-related copyright lawsuits, but these appear to be among the most significant. Some of the others are mired in jurisdictional maneuvers, while others are simply not as strong: a lawsuit filed by The New York Times it could include a different determination of fair use if the ingested articles are used as sources but not to create a new work. These cases are simple, but they won't move quickly: It's easy to imagine the issue going to the Supreme Court.
Despite the high stakes—and what will almost certainly be worth a rap beef back and forth—the determinations of fair use involve an important difference. Fair use makes it legal in some cases to quote or even use the entire copyrighted work without permission, usually for commentary purposes. (One landmark Supreme Court case (included 2 Live Crew's parody of the Roy Orbison song “Oh, Pretty Woman.”) That's far from it, but Suno and Udio will apparently argue that their actions qualify as “transformative use” in the way that did the Google Books project. Next week I'll write about the arguments we can expect to hear, the decisions we could see and what could happen while we wait for them.
from our partners at https://www.billboard.com/pro/music-ai-lawsuits-breaking-down-whats-at-stake/
