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OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under intellectual property and contract law.
- OpenAI's terms of usage might apply however are mainly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, they stated the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting information trove to quickly and inexpensively train a design that's now almost as great.

The Trump administration's top AI czar stated this training process, called "distilling," amounted to copyright theft. OpenAI, forum.pinoo.com.tr meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our designs."

OpenAI is not saying whether the business plans to pursue legal action, instead promising what a spokesperson described "aggressive, proactive countermeasures to secure our technology."

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

BI positioned this question to specialists 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 tough time proving a copyright or copyright claim, these attorneys stated.

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

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

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

"There's a huge concern in copyright law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily unprotected facts," he included.

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

That's unlikely, the attorneys stated.

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

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

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

"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 model into another model," as DeepSeek is said to have actually done, Kortz said.

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

A breach-of-contract lawsuit is most likely

A breach-of-contract claim is much likelier than an IP-based lawsuit, though it includes its own set of problems, stated Anupam Chander, who teaches innovation 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 completing AI design.

"So maybe that's the claim you may possibly 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 model to do something that you were not enabled to do under our agreement."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service require that a lot of claims be dealt with through arbitration, not lawsuits. There's an exception for suits "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a larger drawback, though, professionals said.

"You should understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage 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 really attempted to enforce these terms with financial charges or injunctive relief," the paper states.

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

"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and since courts usually will not enforce contracts not to complete in the absence of an IP right that would avoid that competitors."

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

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 boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another incredibly complicated area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that stretches back to before the starting of the US.

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

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

"They might have utilized technical steps to block repeated access to their site," Lemley stated. "But doing so would also interfere with typical consumers."

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

Representatives for DeepSeek did not instantly react to a request for remark.

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