The record labels suing AI music-making platforms Suno and Udio recently added allegations that the companies ‘stream-ripped’ copyrighted music to train their AI models.
As this claim works through the courts, Suno and Udio have filed an amicus brief in a separate case, arguing that a 2022 federal ruling wrongly declared stream-ripping illegal under the DMCA.
The AI companies warn that the ruling threatens fair use by misinterpreting the law’s distinction between ‘copy controls’ and ‘access controls’.
Stream-ripping is a type of online service where users can enter the URL of media on YouTube or another streaming service, and have that content downloaded to their device.
The issue has become relevant to Suno and Udio now that the major record companies suing them are working to beef up their cases by alleging the AI companies not only violated the copyright on the songs they used without permission to train AI, but also used illicit means to download those songs. They have petitioned the courts to add allegations of stream-ripping against the AI companies.
But the question of whether stream-ripping is illegal is currently before the courts, in a long-running case that has pitted a stream-ripping company, Yout LLC, against the Recording Industry Association of America (RIAA).
Notably, the record labels suing Suno and Udio – owned by Sony Music, Universal Music Group and Warner Music Group – are members of the RIAA, and the RIAA helped coordinate the legal actions against Suno and Udio.
In an amicus brief filed on Friday (October 10) with the US Second Circuit Court of Appeals, the two companies urged the appellate court to overturn a 2022 verdict which declared that stream-ripping violates the US’s Digital Millennium Copyright Act (DMCA).
That ruling “jeopardizes the fair use doctrine” by misconstruing the DMCA, and it “suggests that anyone who downloads a YouTube video – including not only AI startups, but also documentary filmmakers, teachers, and the like – is liable for statutory penalties under the DMCA, even if that person’s activities fall squarely within the contours of fair use,” lawyers for Suno and Udio wrote in the brief, which can be read in full here.
“That was an error with serious implications. It suggests that anyone who downloads a YouTube video—including not only AI startups, but also documentary filmmakers, teachers, and the like—is liable for statutory penalties under the DMCA…”
Suno and Udio, in an amicus brief
The legal battle between the RIAA and Yout LLC began in 2019, when the RIAA sent notices to Google asking the search engine to delist YouTube-DL, the stream-ripping service operated by Yout LLC.
The stream-ripper responded by suing the RIAA, arguing that its stream-ripping activities don’t violate the DMCA. But the judge in that case ruled in the RIAA’s favor, effectively declaring that the DMCA prohibits stream-ripping.
Yout LLC appealed that ruling, and a number of digital rights advocates, such as the Electronic Frontier Foundation, have also objected to it, arguing that the judge’s broad interpretation of the DMCA threatens to upend the “fair use” of copyrighted materials by giving rights holders the ability to stop fair uses of their content.
Groups representing rights holders, such as the Copyright Alliance, have stood behind the RIAA.
“Yout’s illegal, stream-ripping software is a significant threat to copyright holders and ultimately the public. If this court adopts the arguments of Yout and its amici, protection for numerous business models will be devastated, resulting in less, not more, public access to copyrighted works,” the Copyright Alliance wrote in a brief to the court in 2023.
Defenders of stream-ripping say the issue comes down to the difference between “access controls” and “copy controls.” Access controls are technologies designed to limit access to content to certain people, for instance paying subscribers. Copy controls are tech that prevent content from being copied directly.
The DMCA explicitly created a difference between the two and prohibited circumventing access controls but not copy controls, precisely in order to retain the ability of people to copy content within fair use limits, Suno and Udio argued in their amicus brief.
If circumventing YouTube’s copy controls to prevent downloading were declared illegal, it “would, in effect, give copyright owners the de facto right to prohibit fair uses,” the AI companies stated.
“While Congress enacted a prohibition on the provision of devices designed to circumvent copy controls, it declined to prohibit the act of circumventing those controls, so that it would not effectively impose liability on fair users.”
Suno and Udio are defending themselves against the labels’ copyright infringement claims by arguing that their use of copyrighted materials to train their AI counts as “fair use.” So far, US courts have been divided over this issue, with one federal court ruling that it does count as fair use, while another ruled that it doesn’t.
For Suno and Udio, having a court overturn the ruling declaring stream-ripping illegal helps the companies fend off at least one part of the potentially expensive copyright infringement cases they are facing. However, at this point it’s unclear whether the issue of stream-ripping (or more broadly, the issue of the illicit techniques the AI companies used to download content) will even be a part of those cases.
While the record majors have petitioned the courts to add allegations of illicit downloading to their complaints, it’s not certain the courts will allow it. A federal judge last week denied music publishers Universal Music Group, Concord and ABKCO the ability to add a complaint about illicit downloading in their case against AI company Anthropic.
The publishers had requested leave to amend their complaint against Anthropic with allegations the AI company used BitTorrent to pirate vast amounts of copyrighted works.
According to Bloomberg Law, that decision was based on a technicality: The music publishers didn’t seek discovery of Anthropic’s BitTorrent use, even though they had the ability to do so, the judge concluded.Music Business Worldwide
