Jared Brenner recently authored the Forbes article, “AI Lost Its First Fair Use Appeal. Suno Should Be Worried.” In the article, he examines a recent federal appeals court ruling addressing whether the use of copyrighted material to train AI models can qualify as fair use and discusses the ruling’s potential implications for AI companies, including Suno, which has faced various lawsuits due to its use of millions of copyrighted recordings to train its AI model.
In the article, Jared first explains the appellate court’s significant ruling against ROSS Intelligence. ROSS Intelligence was sued by Thomson Reuters, as it used editorial content from its legal research software, Westlaw, to train its competing AI-powered research system. ROSS argued that its use of Westlaw’s content fell under fair use because it was learning from existing information rather than creating new content, but the court found this did not qualify as fair use. A central aspect of this decision was economic competition.
“Market harm was the key factor in the ruling,” Jared writes, “for the simple reason that if someone can take your work without paying, build a product that competes with you, and undercut your market, that does not fall under fair use.”
Jared continues to illustrate the key difference between ROSS Intelligence and Suno’s technologies, emphasizing that Suno uses generative AI to create new music, while ROSS is a research tool. Jared highlights that this “matters because ‘transformative use’ (taking a work and using it for something new and different) is the strongest argument in fair use.”
This characteristic complicates Suno’s case, as a German court recently found that Suno tools could reproduce music quite similar to already existing songs, which Jared claims weakens the “generative defense.” Even if Suno were to strengthen or completely fix its current systems to prevent users from generating songs similar to those already existing, the company still committed copyright infringement in its training, and Jared writes, “The ROSS ruling says you cannot copy copyrighted work to build a competing AI product and call it fair use. Suno’s filters cannot undo what has already been built.”
To conclude his article, Jared emphasizes four key takeaways for songwriters, producers, or rights holders. He first writes that “the Westlaw case cuts in your favor” given it was the first time an appellate court ruled on fair use and AI, and sided with the rights holder. He additionally notes that fair use does not grant a “get-out-of-jail-free card for AI companies,” highlights the importance of whether “AI outputs copy your actual songs,” and that “whether training generative AI on copyrighted recordings without a license is infringement as a matter of law” is yet to come.
