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OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI's terms of use might apply however are largely unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

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

The Trump administration's top AI czar said this training process, called "distilling," totaled up to intellectual property theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek may have wrongly distilled our models."

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

But could it? Could it sue DeepSeek on "you stole our material" grounds, just like the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI posed this question to in technology law, who stated difficult 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 lawyers said.

"The concern is whether ChatGPT outputs" - indicating the responses it produces in reaction to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's due to the fact that it's unclear whether the answers ChatGPT spits out qualify as "creativity," he stated.

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

"There's a huge question in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always vulnerable facts," he added.

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

That's unlikely, the legal representatives stated.

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

If they do a 180 and inform DeepSeek that training is not a reasonable use, "that might come back to type of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply saying that training is fair use?'"

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

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

"But this still puts OpenAI in a pretty difficult scenario with regard to the line it's been toeing concerning reasonable use," he added.

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it features 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 established by OpenAI and Anthropic forbid using their content as training fodder for a competing AI design.

"So perhaps that's the suit you may potentially bring - a contract-based claim, not an IP-based claim," Chander said.

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

There may be a drawback, Chander and Kortz said. OpenAI's regards to service need that most claims be solved through arbitration, not lawsuits. There's an exception for suits "to stop unauthorized use or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

There's a larger hitch, however, professionals said.

"You need to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Expert System Terms of 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 monetary penalties or injunctive relief," the paper states.

"This is likely for good factor: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part because design outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal recourse," it states.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts normally won't implement agreements not to complete in the absence 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, pattern-wiki.win Kortz said.

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 cash 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 the balancing of specific and business rights and nationwide sovereignty - that stretches back to before the founding of the US.

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

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have used technical procedures to block repetitive access to their site," Lemley stated. "But doing so would likewise hinder normal clients."

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

Representatives for DeepSeek did not instantly react to a request for comment.

"We understand that groups in the PRC are actively working to use methods, including what's referred to as distillation, to try to reproduce innovative U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed statement.