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OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual residential or commercial property and contract law.
- OpenAI's terms of use might use however are mostly 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 hoovered up the resulting data trove to rapidly and cheaply train a design that's now nearly as excellent.

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

OpenAI is not stating whether the company plans to pursue legal action, pipewiki.org rather promising what a spokesperson called "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it sue DeepSeek on "you took 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 postured this question to specialists in technology 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 difficult time proving a copyright or copyright claim, these legal representatives stated.

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

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

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

"There's a substantial 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 always unguarded truths," he added.

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

That's not likely, the attorneys said.

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

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

There might be a difference between the Times and DeepSeek cases, .

"Maybe it's more transformative to turn news articles 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 said to have actually done, Kortz stated.

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

A breach-of-contract lawsuit is most likely

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

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

"So maybe 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 design to do something that you were not allowed to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service need that a lot of claims be solved through arbitration, not suits. There's an exception for suits "to stop unauthorized usage or abuse of the Services or intellectual home violation or misappropriation."

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

"You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. 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 Information Technology Policy.

To date, "no design developer has in fact attempted to enforce these terms with financial penalties or injunctive relief," the paper says.

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

"I think they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts typically won't impose arrangements not to contend in the lack of an IP right that would avoid that competition."

Lawsuits in between parties in different nations, each with its own legal and enforcement systems, are always tricky, Kortz said.

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

Here, OpenAI would be at the mercy 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, stuffed procedure," Kortz included.

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

"They could have used technical measures to obstruct repeated access to their site," Lemley said. "But doing so would also hinder typical customers."

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

Representatives for DeepSeek did not right away respond to a request for comment.

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