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OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual home and agreement law.
- OpenAI's terms of usage may apply however are mostly unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to quickly and inexpensively train a design that's now practically as good.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up 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 saying whether the business prepares to pursue legal action, instead promising what a representative termed "aggressive, proactive countermeasures to protect our technology."

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

BI postured this concern 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 proving a copyright or copyright claim, these lawyers stated.

"The concern is whether ChatGPT outputs" - implying the answers it generates in reaction to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

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

"There's a big question in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unprotected truths," he added.

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

That's unlikely, the lawyers said.

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

If they do a 180 and tell DeepSeek that training is not a reasonable use, "that may return to kind of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you simply stating that training is reasonable use?'"

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

"Maybe it's more transformative to turn news articles into a design" - as the Times 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 challenging circumstance with regard to the line it's been toeing concerning reasonable usage," he included.

A breach-of-contract suit is more likely

A breach-of-contract lawsuit 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 developed by OpenAI and Anthropic forbid using their content as training fodder for a completing AI design.

"So perhaps that's the lawsuit you might potentially bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' but that you gained from my design to do something that you were not permitted to do under our contract."

There might be a drawback, Chander and Kortz stated. OpenAI's terms of service need that most claims be solved through arbitration, not suits. There's an exception for suits "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

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

"You need to know that the dazzling 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 really tried to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is questionable," it includes. That's in part due to the fact that 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 believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts normally won't impose agreements not to complete in the lack of an IP right that would prevent that competition."

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, are constantly difficult, 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 money 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 mercy of another very complicated area of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have secured itself better from a distilling attack?

"They could have used technical procedures to block repeated access to their website," Lemley stated. "But doing so would likewise interfere with regular clients."

He added: "I do not believe they could, or should, have a legitimate legal claim versus the searching of uncopyrightable info from a public site."

Representatives for DeepSeek did not right away respond to a demand for setiathome.berkeley.edu remark.

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