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OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's terms of use might apply but are largely unenforceable, they say.
This week, OpenAI and pediascape.science the White House implicated DeepSeek of something akin to theft.

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

The Trump administration's top AI czar stated this training process, called "distilling," amounted to intellectual home theft. OpenAI, on the other hand, told Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not saying whether the company plans to pursue legal action, rather guaranteeing what a spokesperson termed "aggressive, proactive countermeasures to protect our technology."

But could it? Could it sue DeepSeek on "you stole our content" premises, hb9lc.org much like the grounds OpenAI was itself sued on in an ongoing copyright claim filed in 2023 by The New York Times and other news outlets?

BI posed this concern to professionals in innovation 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 attorneys stated.

"The concern is whether ChatGPT outputs" - suggesting the answers it creates in response 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 teaching that states innovative expression is copyrightable, but truths and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a huge concern in copyright law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are always vulnerable realities," he added.

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

That's not likely, the lawyers said.

OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is an allowed "fair use" exception to copyright defense.

If they do a 180 and tell DeepSeek that training is not a fair usage, "that might come back to sort of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you just stating that training is reasonable usage?'"

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

"Maybe it's more transformative to turn news posts 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, hikvisiondb.webcam Kortz stated.

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

A breach-of-contract lawsuit is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it features its own set of issues, setiathome.berkeley.edu said Anupam Chander, wiki.philo.at who teaches technology 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 contending AI model.

"So perhaps that's the suit you may perhaps 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 design to do something that you were not permitted to do under our agreement."

There might be a drawback, Chander and Kortz stated. OpenAI's terms of service require that most claims be dealt with 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 bigger hitch, though, experts stated.

"You ought to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to use are likely unenforceable," Chander said. He was referring to 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 Information Technology Policy.

To date, "no model creator has actually attempted to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for good factor: we believe that the legal enforceability of these licenses is questionable," it includes. That remains in part due to the fact that design outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

"I think they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts generally won't impose agreements not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits between parties in different countries, each with its own legal and enforcement systems, are always 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another exceptionally complex 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, laden procedure," Kortz included.

Could OpenAI have protected itself better from a distilling attack?

"They might have used technical procedures to block repeated access to their site," Lemley said. "But doing so would also interfere with typical consumers."

He added: "I do not think they could, or should, have a valid legal claim against the browsing of uncopyrightable details from a public website."

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

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