OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under copyright and contract law.
- OpenAI's terms of usage might use however are mostly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something comparable to theft.

In a flurry of press declarations, they stated the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and cheaply train a model that's now almost as good.

The Trump administration's AI czar stated this training process, called "distilling," amounted to copyright theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not stating whether the business plans to pursue legal action, rather promising what a representative described "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our material" grounds, just like the grounds OpenAI was itself took legal action against on in an ongoing copyright claim filed in 2023 by The New York City Times and other news outlets?

BI posed this concern to professionals in technology law, who stated difficult DeepSeek in the courts would be an uphill struggle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a tough time showing an intellectual property or wiki.rrtn.org copyright claim, these legal representatives said.

"The question is whether ChatGPT outputs" - implying the responses it produces in action to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's since it's unclear whether the answers ChatGPT spits out certify as "creativity," he stated.

"There's a teaching that says imaginative expression is copyrightable, but truths and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a big question in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever constitute creative expression or if they are always vulnerable truths," he included.

Could OpenAI roll those dice anyway and declare that its outputs are protected?

That's not likely, the legal representatives said.

OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is a permitted "fair usage" exception to copyright protection.

If they do a 180 and inform DeepSeek that training is not a fair use, "that may return to sort of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you simply saying that training is fair use?'"

There may be a difference between the Times and DeepSeek cases, Kortz added.

"Maybe it's more transformative to turn news short articles into a model" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a model into another model," as DeepSeek is said to have done, Kortz stated.

"But this still puts OpenAI in a pretty challenging scenario with regard to the line it's been toeing regarding fair use," he included.

A breach-of-contract claim is most likely

A breach-of-contract suit is much likelier than an IP-based claim, though it features its own set of problems, said 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 competing AI model.

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

"Not, 'You copied something from me,' but that you gained from my model to do something that you were not allowed to do under our agreement."

There may be a hitch, Chander and Kortz said. OpenAI's terms of service require that most claims be dealt with through arbitration, not lawsuits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a bigger hitch, though, specialists stated.

"You must understand that the brilliant 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 says.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is questionable," it adds. That remains in part due to the fact that design outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited recourse," it states.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts usually won't enforce agreements not to compete in the lack of an IP right that would avoid that competition."

Lawsuits in between celebrations in different nations, each with its own legal and enforcement systems, are always tricky, Kortz stated.

Even if OpenAI cleared all the above difficulties and won a judgment from an US 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 stated.

Here, OpenAI would be at the grace of another exceptionally complex location of law - the enforcement of foreign judgments and the balancing of private and business rights and nationwide sovereignty - that stretches back to before the founding of the US.

"So this is, a long, made complex, filled process," Kortz added.

Could OpenAI have safeguarded itself better from a distilling attack?

"They might have utilized technical measures to obstruct repetitive access to their website," Lemley said. "But doing so would also hinder normal customers."

He included: "I don't believe they could, or should, have a valid legal claim versus the searching of uncopyrightable details from a public website."

Representatives for DeepSeek did not right away react to an ask for remark.

"We understand that groups in the PRC are actively working to use approaches, including what's referred to as distillation, to attempt to duplicate advanced U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.