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OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under copyright and agreement law.
- OpenAI's regards to usage may apply however are mostly unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press declarations, they said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to rapidly and inexpensively train a model that's now nearly as good.

The Trump administration's leading AI czar said this training procedure, called "distilling," amounted to intellectual property 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 company prepares to pursue legal action, instead guaranteeing what a representative described "aggressive, proactive countermeasures to secure our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our content" grounds, similar to the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI posed this question to experts in innovation law, who said challenging 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 difficult time proving a copyright or copyright claim, these legal representatives stated.

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

That's since it's unclear whether the responses ChatGPT spits out as "creativity," he said.

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

"There's a substantial question in copyright law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are always unguarded facts," he included.

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

That's not likely, the lawyers said.

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

If they do a 180 and inform DeepSeek that training is not a reasonable use, "that may return to type of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is reasonable usage?'"

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

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

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

A breach-of-contract lawsuit is more likely

A breach-of-contract suit is much likelier than an IP-based claim, asteroidsathome.net though it features its own set of problems, said Anupam Chander, who teaches technology 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 material as training fodder for a completing AI model.

"So maybe that's the lawsuit you might potentially 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 permitted to do under our contract."

There may be a hitch, Chander and Kortz said. OpenAI's regards to service require that a lot of claims be fixed through arbitration, not lawsuits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

There's a bigger hitch, though, specialists said.

"You should understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are most 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 Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no model developer has really attempted to implement these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is doubtful," it adds. 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 "deal restricted option," it says.

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

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

Even if OpenAI cleared all the above difficulties and won a judgment from an US 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 grace of another exceptionally complicated 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, stuffed procedure," Kortz included.

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

"They might have utilized technical measures to block repeated access to their website," Lemley said. "But doing so would also interfere with typical customers."

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

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

"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 designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.

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