1 OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say

eltonstockwell edited this page 2025-02-21 17:27:17 +01:00

OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual property and contract law.
- OpenAI's regards to use may use however are mainly unenforceable, they say.
Today, OpenAI and the White House accused of something akin to theft.

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

The Trump administration's top AI czar stated this training procedure, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our models."

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

But could it? Could it sue DeepSeek on "you stole our content" premises, much like the grounds OpenAI was itself sued on in an ongoing copyright claim filed in 2023 by The New York Times and other news outlets?

BI positioned this question to experts in technology law, who said tough 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 tough time proving an intellectual residential or commercial property or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - implying the answers it generates in response to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's due to the fact that it's uncertain whether the responses ChatGPT spits out qualify as "creativity," he said.

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

"There's a substantial concern in copyright law today about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected realities," he added.

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

That's unlikely, the legal representatives stated.

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

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

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

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

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

A breach-of-contract suit is more 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 technology law at Georgetown University.

Related stories

The regards to service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid utilizing their content as training fodder for a contending AI model.

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

"Not, 'You copied something from me,' however that you gained from my design to do something that you were not allowed to do under our contract."

There may be a drawback, Chander and Kortz stated. OpenAI's terms of service need that a lot of claims be resolved through arbitration, not lawsuits. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or copyright infringement or misappropriation."

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

"You ought to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Expert System 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 model developer has actually attempted to impose these terms with financial charges or injunctive relief," the paper states.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part because design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal option," it says.

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

Lawsuits in between parties in various countries, online-learning-initiative.org each with its own legal and enforcement systems, are always challenging, Kortz said.

Even if OpenAI cleared all the above obstacles 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 come down to the Chinese legal system," he stated.

Here, OpenAI would be at the grace of another extremely 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, laden procedure," Kortz added.

Could OpenAI have secured itself better from a distilling attack?

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

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

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

"We understand that groups in the PRC are actively working to use methods, including what's referred to as distillation, to attempt to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, bybio.co told BI in an emailed declaration.