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OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to usage might apply but are mainly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

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

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

OpenAI is not saying whether the business prepares to pursue legal action, rather guaranteeing what a representative described "aggressive, proactive countermeasures to safeguard our technology."

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

BI posed this concern to experts in innovation 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 proving a copyright or copyright claim, these attorneys stated.

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

That's because it's uncertain whether the answers ChatGPT spits out qualify as "imagination," he said.

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

"There's a huge concern in copyright law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily unprotected facts," he added.

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

That's not likely, the lawyers said.

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

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

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

"Maybe it's more transformative to turn news articles into a model" - as the Times implicates 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 pretty difficult situation with regard to the line it's been toeing relating to reasonable usage," he added.

A breach-of-contract claim is most likely

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

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

"So possibly that's the suit you might potentially 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 contract."

There may be a hitch, Chander and Kortz stated. OpenAI's regards to service require 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 intellectual residential or commercial property violation or misappropriation."

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

"You need to know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Artificial Intelligence Terms of Use Restrictions," by Stanford Law's Mark A. Lemley and setiathome.berkeley.edu Peter Henderson of Princeton University's Center for Information Technology Policy.

To date, "no design creator has really attempted to enforce these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for good reason: we think that the legal enforceability of these licenses is questionable," it includes. That's in part due to the fact that 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 says.

"I believe they are 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 enforce agreements not to contend in the lack of an IP right that would avoid that competition."

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, are constantly tricky, Kortz stated.

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 location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that extends back to before the starting of the US.

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

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

"They could have used technical measures to block repeated access to their website," Lemley stated. "But doing so would likewise interfere with normal customers."

He added: "I don't think they could, or should, have a legitimate legal claim against the browsing of uncopyrightable details from a public site."

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

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

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