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 recourse under intellectual residential or commercial property and agreement law.
- OpenAI's terms of use may apply however are largely unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something comparable to theft.

In a flurry of press statements, surgiteams.com they stated the Chinese upstart had actually bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to rapidly and inexpensively train a design that's now practically as excellent.

The Trump administration's leading AI czar stated this training procedure, called "distilling," amounted to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our models."

OpenAI is not stating whether the company prepares to pursue legal action, instead what a representative termed "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it sue DeepSeek on "you stole our content" premises, just like the premises OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI posed this question to professionals 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 difficult time showing a copyright or copyright claim, these attorneys stated.

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

That's since it's unclear whether the answers ChatGPT spits out qualify as "imagination," he stated.

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

"There's a big concern in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unguarded facts," he included.

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

That's unlikely, the lawyers stated.

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

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

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

"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 design," as DeepSeek is stated to have done, Kortz said.

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

A breach-of-contract suit is most likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, though it comes with its own set of problems, stated Anupam Chander, links.gtanet.com.br who teaches innovation law at Georgetown University.

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The terms of service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid utilizing their content as training fodder for a completing AI design.

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

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

There might be a drawback, Chander and Kortz stated. OpenAI's regards to service require that many claims be resolved through arbitration, not claims. There's an exception for suits "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

There's a bigger drawback, however, experts said.

"You ought to know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are 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 Information Technology Policy.

To date, "no model creator has really attempted to implement these terms with financial charges or injunctive relief," the paper says.

"This is likely for good reason: we think that the legal enforceability of these licenses is doubtful," it includes. That's in part because design outputs "are mainly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it states.

"I think they are most likely unenforceable," Lemley told BI of OpenAI's regards to 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 in between parties in different countries, 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 a United States 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 extremely complex area of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have secured itself better from a distilling attack?

"They might have utilized technical procedures to obstruct repetitive access to their site," Lemley stated. "But doing so would likewise interfere with normal consumers."

He included: "I don't think they could, or should, have a valid legal claim against the browsing of uncopyrightable information from a public website."

Representatives for DeepSeek did not immediately react to an ask for remark.

"We know that groups in the PRC are actively working to use techniques, including what's called distillation, to attempt to replicate advanced U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.