OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's regards to usage might apply but are largely unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and cheaply train a design that's now almost as excellent.

The Trump administration's top AI czar said this training procedure, called "distilling," totaled up to intellectual property theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our designs."

OpenAI is not saying whether the company prepares to pursue legal action, it-viking.ch instead promising what a spokesperson called "aggressive, proactive countermeasures to safeguard our innovation."

But could it? Could it take legal action against DeepSeek on "you took our material" grounds, much like the premises OpenAI was itself took legal action against on in an ongoing copyright claim submitted in 2023 by The New York 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 battle for OpenAI now that the content-appropriation shoe is on the other foot.

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

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

That's due to the fact that it's uncertain whether the answers ChatGPT spits out certify as "imagination," he said.

"There's a doctrine that states creative expression is copyrightable, but facts and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

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

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

That's unlikely, the lawyers stated.

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

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

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

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

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

A breach-of-contract claim is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it includes its own set of issues, said Anupam Chander, who teaches innovation law at Georgetown University.

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

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

"Not, 'You copied something from me,' but that you benefited from my design to do something that you were not enabled to do under our contract."

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

There's a larger drawback, however, experts stated.

"You should understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander stated. He was describing a January 10 paper, "The Mirage of Artificial Intelligence Terms of Use Restrictions," by Mark A. Lemley and Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no model developer has actually attempted to impose these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part because model outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

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

Lawsuits between celebrations in various nations, each with its own legal and enforcement systems, are constantly difficult, Kortz said.

Even if OpenAI cleared all the above hurdles 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 mercy of another incredibly complex area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and nationwide sovereignty - that extends back to before the founding of the US.

"So this is, a long, made complex, fraught procedure," Kortz included.

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

"They could have used technical measures to obstruct repeated access to their site," Lemley stated. "But doing so would also disrupt typical clients."

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

Representatives for DeepSeek did not right away react to a request for comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's known as distillation, to attempt to replicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.