OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI's terms of usage may use but are mostly unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something comparable 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 data trove to quickly and cheaply train a model that's now practically as great.

The Trump administration's leading AI czar stated this training procedure, called "distilling," totaled up to intellectual property theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek may have wrongly distilled our models."

OpenAI is not saying whether the company plans to pursue legal action, rather assuring 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" grounds, just like 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 question to experts in technology law, who stated 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 showing a copyright or copyright claim, these lawyers stated.

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

That's due to the fact that it's uncertain whether the responses ChatGPT spits out qualify as "imagination," he stated.

"There's a doctrine that states imaginative expression is copyrightable, but truths and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a huge concern in intellectual home law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unguarded truths," he added.

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

That's unlikely, the legal representatives said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is an allowable "fair use" exception to copyright security.

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

There may be a distinction in between the Times and DeepSeek cases, Kortz added.

"Maybe it's more transformative to turn news short articles into a design" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a design into another model," 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 relating to fair use," he included.

A breach-of-contract claim is more most likely

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

Related stories

The regards to service for Big Tech chatbots like those by OpenAI and Anthropic forbid utilizing their content as training fodder for a competing AI design.

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

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

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

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

"You need to understand that the fantastic 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 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 penalties or injunctive relief," the paper states.

"This is most likely for great factor: we believe that the legal enforceability of these licenses is questionable," it includes. That's in part since model outputs "are mostly not copyrightable" and hb9lc.org because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," it states.

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically won't enforce agreements not to compete 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 always tricky, Kortz said.

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 money or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another very complex 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 starting of the US.

"So this is, a long, made complex, stuffed process," Kortz included.

Could OpenAI have protected itself better from a distilling attack?

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

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

Representatives for DeepSeek did not instantly respond to an ask for remark.

"We understand that groups in the PRC are actively working to use techniques, including what's understood as distillation, to attempt to reproduce advanced U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.