OpenAI and the White House have actually accused DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under intellectual residential or commercial property and contract law.
- OpenAI's terms of usage may apply however are mostly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

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

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

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

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

BI positioned this concern to specialists in innovation law, who said tough 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 proving an intellectual residential or commercial property or copyright claim, these legal representatives said.

"The concern is whether ChatGPT outputs" - suggesting the answers it produces in reaction to "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 "imagination," he said.

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

"There's a huge question in copyright law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unprotected truths," he added.

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

That's not likely, the attorneys 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 sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is reasonable 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 implicates OpenAI of doing - "than it is to turn outputs of a design into another model," 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 relating to fair use," he added.

A breach-of-contract lawsuit is more most likely

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

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

"So perhaps 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 took advantage of my model to do something that you were not allowed to do under our contract."

There might be a drawback, Chander and Kortz stated. OpenAI's terms of service require that the majority of claims be fixed through arbitration, not suits. There's an exception for complexityzoo.net suits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a bigger hitch, though, professionals stated.

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are likely unenforceable," Chander stated. He was referring to 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 Information Technology Policy.

To date, "no design creator has actually attempted to impose these terms with financial penalties or injunctive relief," the paper says.

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

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically will not enforce contracts not to compete in the absence of an IP right that would prevent that competition."

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

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

Here, OpenAI would be at the grace of another exceptionally complicated location of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that stretches back to before the founding of the US.

"So this is, a long, made complex, fraught procedure," Kortz included.

Could OpenAI have protected itself better from a distilling incursion?

"They might have used technical steps to obstruct repeated access to their website," Lemley said. "But doing so would likewise hinder normal consumers."

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

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

"We know that groups in the PRC are actively working to use approaches, including what's referred to as distillation, to try to duplicate advanced U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.