Justice et al. v. Suno, Inc. (D. Mass. 25-cv-11739).

Plaintiff Anthony Justice filed a class action lawsuit on behalf of independent recording artists and entities that held copyrights to various compositions and recordings, asserting that Suno (a generative AI company) had downloaded copyrighted songs for training its AI model, and that Suno’s AI program had subsequently generated music that was the same as or substantially similar to these songs.  Suno moved to dismiss counts for violation of Section 106(2) of the Copyright Act (which provides a copyright holder with the exclusive right to prepare derivative works), Section 1201(a)(1) of the Digital Millenium Copyright Act (which prohibits circumvention of technological measures used to control access to a copyrighted work), and violation of the Tennessee Consumer Protection Act (“TCPA”) (Suno did not move to dismiss a count for violation of Section 106(1) of the Copyright Act, which provides for the reproduction of a copyrighted work).

Judge Saylor granted dismissal with respect to the TCPA, but denied dismissal as to the other two counts.  With respect to derivative works, Judge Saylor found that the complaint sufficiently alleged substantial similarity between the copyrighted works and the alleged derivative works to allow for the conclusion of copying of protected expression.  The Complaint alleged that some Suno-generated outputs infringed the copyrighted works “verbatim or near verbatim” and had provided around 100 examples of such alleged copying.  The Complaint further alleged that the Suno model was specifically structured to “mirror the very songs it trained on.”  He rejected Suno’s argument that Justice was required to identify and attach specific derivative works alleged to be infringing, noting that Justice was only required to plead the existence of non-conclusory, non-speculative facts that support a plausible inference of infringement.  He noted case law that held that substantial similarity had been sufficiently alleged where complaints referenced comments from accused AI companies regarding the contents of their AI models and ability to reproduce works, academic papers asserting that AI models can produce very similar works to those that they were trained on and the like, and that the complaint in this case pointed to comments by Suno’s CEO that its model “already has the ability to produce outputs that replicate real artists’ vocals and songs.”  This was enough to create a plausible inference of infringement by Suno’s outputs (although, of course, further along in the litigation, Justice would have to bring forth more fulsome proof to avoid summary judgment).  Accordingly, he denied the motion to dismiss with respect to derivative works.

Judge Saylor similarly denied dismissal with respect to the DCMA claim.  The complaint alleged that Suno used a “stream-ripping” tool to circumvent ciphers and access plaintiffs’ songs.  He determined that the rolling ciphers constituted “access control” measures at least for the purposes of a motion to dismiss, and therefore denied dismissal.

With respect to the TCPA, the plaintiffs asserted that citation to that statute was inadvertent, and that they had intended to assert a Tennessee common law unfair competition claim.  As they had not actually filed a motion to amend the complaint, however, Judge Saylor refused to consider the viability of a common law claim, and he noted that the plaintiffs had not argued against Suno’s position that the TCPA was, at least in the circumstances of the case, preempted by the Copyright Act.  Accordingly, this count was dismissed.