Tony Justice Opposes Suno Dismissal Motion in Copyright Lawsuit

Photo Credit: Christian Gafenesch

Late last month, Suno moved to dismiss most of the artist-led copyright class action filed against it by Tony Justice and others. Now, the plaintiffs have fired back, including by doubling down on their stream-ripping claims.

The dismissal opposition took the form of a nearly 30-page response yesterday, seven weeks after Justice submitted his amended complaint. Among other things, the action added quite a few pages and embraced the mentioned stream-ripping angle.

In doing so, it specifically accused Suno of violating the DMCA by bypassing YouTube anti-piracy measures en route to securing protected audio for training purposes. Unsurprisingly, the high-stakes allegation (which is front and center in separate cases; more on this in a moment) didn’t sit right with Suno – nor did the amended complaint itself.

In short, the AI platform filed to dismiss Justice’s derivative-outputs, DMCA/ripping, and state-law claims.

“Plaintiffs have not alleged any facts regarding particular outputs created through Suno that are ‘substantially similar’ to the sound recordings they have asserted,” the WavTool owner wrote on the soundalike-creation side.

Refuting the position and the dismissal demand, the Delgado Entertainment Law-repped plaintiffs underscored Suno’s alleged largescale scraping of music for training, besides indicating that “Suno’s creation of derivative works is ongoing, with new infringements discovered just prior to” the amended action’s arrival.

Furthermore, the filing parties said they’d met “the pleading threshold by alleging, plausibly and in significant detail, approximately 100 examples of infringing Suno outputs containing copyrighted songs.”

When it comes to assembling a larger collection of examples yet, outsiders “cannot access Suno’s closed black box system,” Justice reiterated.

Building on the idea, in defending their use of “on information and belief,” the plaintiffs described it as “a necessary and accepted mechanism where critical facts lie behind a locked door to which defendant alone has access.”

Shifting to the DMCA, we needn’t dedicate too many words to stream ripping here; we’ve already covered the central argument of Suno as well as Udio that YouTube’s rolling cipher constitutes a copy, not an access, control.

Consequently, the DMCA’s section 1201 allegedly doesn’t bar the cipher’s circumvention. Of course, the Justice parties, the major labels, and different litigants are of the exact opposite opinion – with the Yout v. RIAA (now involving Suno and Udio) and FLVTO.biz showdowns of old factoring prominently into their filings.

While the overarching stream-ripping dispute is well-trodden, Justice did introduce a couple fresh points in the dismissal opposition. Treating YouTube’s rolling cipher as an access control won’t inhibit fair use at all, according to the plaintiffs, who also stressed Suno’s alleged stream-ripping on Spotify and elsewhere.

“[A] common way to make fair use of YouTube videos is through screen-recording tools, such as OBS [Open Broadcaster Software] – which creates exact copies of publicly displayed videos without ever accessing the underlying files,” they penned.

“Unlike subscription platforms like Hulu or Netflix, which employ DRM encoding to block user copying, even after gaining lawful access via a paid subscription,” they proceeded, “YouTube instead permits users to screen-record to create exact copies without breaching its encryption or server-level protections. YouTube enables the fair use of videos while expressly prohibiting accessing their underlying song and video files.”

Finally, with Suno having maintained that the state-level Tennessee Consumer Protection Act claim “is preempted by federal copyright law,” Justice defended the cause of action and requested “leave to supplement those allegations and cure any perceived deficiencies” if necessary.

Certain sub-class members, the plaintiffs explained, “lack copyright registrations” but nevertheless “lawfully market and license their songs in the open marketplace.” As such, Suno’s alleged conduct “deprived them of attribution, credit, and compensation while reaping the commercial benefits of their labor.”

“This constitutes unfair competition and competitive misappropriation, not copyright infringement: the injury lies in the unfair market advantage Suno obtained by using Plaintiffs’ creative identity and output to compete against them,” they continued.

Despite Universal Music’s Udio settlement, there are several active music industry copyright cases against Suno and Udio; said cases include a suit levied by Justice and others against Udio, Denmark-based Koda’s Suno complaint, and a different artist-led action against both companies.