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OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's terms of usage may apply but are largely unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to quickly and inexpensively train a design that's now almost as great.

The Trump administration's leading AI czar stated this training process, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not stating whether the company plans to pursue legal action, instead promising what a spokesperson termed "aggressive, proactive countermeasures to secure our technology."

But could it? Could it take legal action against DeepSeek on "you took our content" premises, just like the premises OpenAI was itself sued on in a continuous copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI posed this question to experts in innovation law, who stated tough DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing a copyright or copyright claim, these legal representatives said.

"The concern is whether ChatGPT outputs" - suggesting the responses it creates in response to queries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's because it's unclear whether the responses ChatGPT spits out certify as "imagination," he said.

"There's a teaching that states innovative expression is copyrightable, however facts and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a substantial question in copyright law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily vulnerable truths," he included.

Could OpenAI roll those dice anyhow and declare that its outputs are safeguarded?

That's unlikely, the lawyers said.

OpenAI is already on the record in The New York Times' copyright case arguing that training AI is an "fair use" exception to copyright protection.

If they do a 180 and tell DeepSeek that training is not a reasonable use, "that might come back to kind of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you just saying that training is fair usage?'"

There may be a distinction between the Times and DeepSeek cases, Kortz included.

"Maybe it's more transformative to turn news posts into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a design into another design," as DeepSeek is said to have done, Kortz said.

"But this still puts OpenAI in a quite predicament with regard to the line it's been toeing regarding reasonable use," he included.

A breach-of-contract claim is most likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, it-viking.ch though it comes with its own set of problems, stated Anupam Chander, who teaches innovation law at Georgetown University.

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The terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their content as training fodder for a completing AI model.

"So maybe that's the suit you might possibly bring - a contract-based claim, not an IP-based claim," Chander stated.

"Not, 'You copied something from me,' however that you took advantage of my design to do something that you were not permitted to do under our contract."

There may be a drawback, Chander and Kortz stated. OpenAI's regards to service need that many claims be dealt with through arbitration, not suits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or copyright violation or misappropriation."

There's a larger hitch, though, experts said.

"You need to know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander said. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence Regards To Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no design developer has actually tried to enforce these terms with financial charges or injunctive relief," the paper states.

"This is likely for great factor: we believe that the legal enforceability of these licenses is doubtful," it includes. That remains in part since design outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited recourse," it states.

"I believe they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts normally won't impose agreements not to compete in the absence of an IP right that would avoid that competitors."

Lawsuits between parties in different countries, each with its own legal and enforcement systems, are constantly challenging, Kortz stated.

Even if OpenAI cleared all the above obstacles and won a judgment from a United States court or arbitrator, "in order to get DeepSeek to turn over money or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he said.

Here, OpenAI would be at the mercy of another extremely complex area of law - the enforcement of foreign judgments and opentx.cz the balancing of private and corporate rights and nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, complicated, laden process," Kortz added.

Could OpenAI have protected itself much better from a distilling attack?

"They could have used technical measures to block repeated access to their website," Lemley said. "But doing so would also disrupt typical clients."

He included: "I do not think they could, or should, have a valid legal claim versus the browsing of uncopyrightable info from a public website."

Representatives for DeepSeek did not instantly react to a demand for remark.

"We understand that groups in the PRC are actively working to utilize methods, including what's understood as distillation, to try to replicate advanced U.S. AI models," Rhianna Donaldson, wiki.die-karte-bitte.de an OpenAI representative, informed BI in an emailed statement.