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

mikelpalmer88 edited this page 2025-02-09 23:51:16 +01:00

OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under intellectual home and contract law.
- OpenAI's terms of usage might use but are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

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

The Trump administration's leading AI czar said this training procedure, called "distilling," totaled up to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

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

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

BI postured this question to experts 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 a copyright or copyright claim, these attorneys stated.

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

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

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

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

Could OpenAI roll those dice anyhow and claim that its outputs are protected?

That's not likely, the attorneys said.

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

If they do a 180 and tell DeepSeek that training is not a reasonable usage, "that may return to kind of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you just saying that training is fair usage?'"

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

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

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

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

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The regards to 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 claim you might potentially bring - a contract-based claim, not an IP-based claim," Chander said.

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

There might be a hitch, Chander and Kortz stated. OpenAI's terms of service require that many claims be resolved through arbitration, not suits. There's an exception for claims "to stop unapproved usage or abuse of the Services or intellectual property infringement or misappropriation."

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

"You should understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander said. He was describing 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 model creator has actually tried to enforce these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for good factor: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part because model outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and grandtribunal.org Abuse Act "offer restricted recourse," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts generally won't impose arrangements not to complete in the lack of an IP right that would prevent that competition."

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

Even if OpenAI cleared all the above and won a judgment from a United States 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 said.

Here, OpenAI would be at the grace of another extremely complicated location of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that stretches back to before the starting of the US.

"So this is, a long, complicated, filled procedure," Kortz included.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They might have utilized technical procedures to block repeated access to their website," Lemley said. "But doing so would also interfere with regular consumers."

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

Representatives for DeepSeek did not immediately react to a demand addsub.wiki for comment.

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