As generative AI companies pursue licensing deals with music rightsholders, some agreements contain clauses that function less as licenses and more as permanent waivers of the right to sue, raising concerns among legal experts.
Defining a Covenant Not to Sue
A covenant not to sue is a contractual promise in which one party agrees in advance never to bring a legal claim against the other, regardless of the circumstances. Unlike a license, which grants permission for a defined term and can expire, a covenant not to sue can permanently waive the right to seek a remedy, including injunctive relief.
As Tom Waits put it in “Step Right Up,” the large print giveth and the small print taketh away.
Permanent Waivers Disguised as Licenses
Some agreements include a separate clause in which the signatory irrevocably promises, both during and after the term, never to bring any claim against the company or its users. If the covenant covers copyright, publicity rights, moral rights, defamation, and potential future legal theories, the document is not a license but a surrender of enforcement rights.
Tenants-in-Common and Co-Writer Rights
Under tenants-in-common (TIC) co-ownership of a copyright, any co-owner can grant a non-exclusive license without the consent of the others. The 100% licensing dispute of 2016 demonstrated how this principle can be exploited. An agreement may require the signatory to represent that no third-party consent is needed and to refrain from encouraging fellow songwriters to take positions inconsistent with the deal. If the covenant not to sue extends to all contributors, a co-writer who did not sign could find their enforcement rights compromised.
A non-exclusive license, or a covenant not to sue, granted by one co-owner covering the full composition is generally binding on all co-owners. The non-signing co-writer’s right to sue is not technically extinguished, but the company can use the grant as a complete defense, rendering the right practically worthless. One publisher’s signature can neutralize enforcement across an entire song’s ownership chain.
Preemptive Releases for Past Use
Some agreements bury a broad release of all claims arising before the effective date, known and unknown. This functions as a preemptive settlement, not a forward-looking license. They may also ask the signatory to waive protections such as California Civil Code Section 1542, which prevents the accidental release of unknown claims. If an AI company has been training on a catalog without permission, such a release could eliminate leverage to seek compensation or an injunction for that prior use, similar to the safe harbor created by the Music Modernization Act.
Inadequate Removal and Retraining Provisions
Licenses to include works in a training dataset may appear structured, but the removal mechanics deserve scrutiny. If the company is only required to retrain its model a limited number of times per year, say twice, then even after a catalog is pulled, the works may remain embedded in the model for months or indefinitely. Research suggests that retraining does not guarantee complete removal. If the covenant not to sue survives the term for anything created while the deal was active, or before it, the training that already occurred is effectively locked in. This could inadvertently grant a right for the signatory and their co-writers.
