OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual home and contract law.
- OpenAI's terms of use may use however are mainly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something akin 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 information trove to rapidly and cheaply train a design that's now practically as excellent.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our models."

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

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

BI posed this concern to experts in technology law, who said tough DeepSeek in the courts would be an uphill fight for hb9lc.org 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 lawyers said.

"The question is whether ChatGPT outputs" - meaning the responses it generates in response to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's due to the fact that it's uncertain whether the responses ChatGPT spits out qualify as "creativity," he said.

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

"There's a huge question in copyright law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily vulnerable facts," he included.

Could those dice anyhow and declare that its outputs are secured?

That's unlikely, the attorneys said.

OpenAI is already on the record in The New York 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 use, "that may return to sort of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you just stating that training is reasonable usage?'"

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

"Maybe it's more transformative to turn news posts 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 said.

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

A breach-of-contract claim is most likely

A breach-of-contract suit is much likelier than an IP-based suit, though it includes its own set of problems, said Anupam Chander, who teaches technology 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 competing AI model.

"So perhaps that's the claim you may perhaps 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 enabled to do under our agreement."

There might be a hitch, Chander and Kortz said. OpenAI's regards to service require that many claims be fixed through arbitration, not claims. There's an exception for claims "to stop unapproved use or abuse of the Services or intellectual home infringement or misappropriation."

There's a larger drawback, however, archmageriseswiki.com specialists said.

"You need to understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of 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 Infotech Policy.

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

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

"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 since courts typically will not impose arrangements not to complete in the absence of an IP right that would avoid that competition."

Lawsuits in between parties in different countries, each with its own legal and enforcement systems, are always difficult, 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 money 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 grace of another incredibly 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, fraught process," Kortz added.

Could OpenAI have secured itself much better from a distilling attack?

"They might have utilized technical measures to obstruct repetitive access to their website," Lemley stated. "But doing so would also disrupt normal clients."

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

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

"We understand that groups in the PRC are actively working to use approaches, including what's called distillation, to attempt to reproduce sophisticated U.S. AI models," Rhianna Donaldson, setiathome.berkeley.edu an OpenAI representative, wiki.vst.hs-furtwangen.de informed BI in an emailed statement.