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OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI's regards to usage might use however are mostly unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something comparable 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 design that's now nearly as great.

The Trump administration's leading AI czar said this training procedure, called "distilling," amounted to intellectual home theft. OpenAI, meanwhile, pipewiki.org informed Business Insider and other outlets that it's examining 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 termed "aggressive, proactive countermeasures to protect our innovation."

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

BI presented this question to experts in technology law, who stated difficult DeepSeek in the courts would be an uphill fight 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 lawyers stated.

"The concern is whether ChatGPT outputs" - implying the responses it creates in action to queries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

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

"There's a big concern in copyright law today about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected facts," he added.

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

That's not likely, the attorneys stated.

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

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

There may be a distinction in 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 design into another model," as DeepSeek is said to have actually done, Kortz stated.

"But this still puts OpenAI in a quite difficult situation with regard to the line it's been toeing concerning fair usage," he added.

A breach-of-contract suit is more most likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, though it features its own set of issues, 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 content as training fodder for a contending AI design.

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

"Not, 'You copied something from me,' but that you benefited from my model to do something that you were not allowed to do under our agreement."

There may be a drawback, Chander and Kortz stated. OpenAI's terms of service need that many claims be dealt with through arbitration, not suits. There's an exception for suits "to stop unauthorized usage or abuse of the Services or copyright violation or misappropriation."

There's a larger hitch, though, specialists stated.

"You need to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable," Chander stated. 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 Information Technology Policy.

To date, "no design developer has in fact tried to enforce these terms with financial charges or injunctive relief," the paper states.

"This is most likely for great reason: we believe that the legal enforceability of these licenses is doubtful," it includes. That remains in part because model outputs "are mainly 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 states.

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

Lawsuits between celebrations in different nations, each with its own legal and enforcement systems, are constantly challenging, Kortz said.

Even if OpenAI cleared all the above obstacles 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 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 extends back to before the starting of the US.

"So this is, a long, made complex, fraught process," Kortz added.

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

"They might have used technical measures to obstruct repeated access to their site," Lemley stated. "But doing so would also hinder normal clients."

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

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

"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 representative, told BI in an emailed declaration.