OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's regards to use may apply however are largely unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and up the resulting information trove to rapidly and cheaply train a design that's now nearly as excellent.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up 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 stating whether the business prepares to pursue legal action, instead promising what a representative termed "aggressive, proactive countermeasures to protect our technology."

But could it? Could it sue DeepSeek on "you stole our content" premises, just like the premises OpenAI was itself took legal action against on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI presented this concern to professionals in innovation law, who stated 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 difficult time proving a copyright or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - meaning the answers it generates in response to inquiries - "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 stated.

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

"There's a big question in intellectual home law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are always unguarded truths," he included.

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

That's unlikely, the lawyers stated.

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

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

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

"Maybe it's more transformative to turn news posts into a model" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek is said 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 claim is more likely

A breach-of-contract suit is much likelier than an IP-based claim, though it includes 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 content as training fodder for a contending AI design.

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

"Not, 'You copied something from me,' but that you took advantage of my design to do something that you were not enabled to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service need that most claims be dealt with through arbitration, not suits. There's an exception for suits "to stop unapproved use or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

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

"You need to know 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 Expert System 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 design developer has actually attempted to implement these terms with financial charges or injunctive relief," the paper states.

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

"I think they are most likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts normally won't implement contracts not to compete in the lack of an IP right that would prevent that competition."

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, oke.zone are always challenging, Kortz said.

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

Here, OpenAI would be at the grace of another very complicated area of law - the enforcement of foreign judgments and the balancing of private and corporate rights and national sovereignty - that stretches back to before the founding of the US.

"So this is, a long, complicated, stuffed procedure," Kortz added.

Could OpenAI have safeguarded itself better from a distilling attack?

"They might have used technical steps to obstruct repetitive access to their site," Lemley said. "But doing so would also interfere with typical customers."

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

Representatives for DeepSeek did not right away react to an ask for remark.

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