OpenAI and the White House have implicated DeepSeek of using to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual home and contract law.
- OpenAI's terms of use may apply however are mostly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

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

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

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

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

BI positioned this question to experts in innovation law, who stated challenging 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 showing an intellectual property or archmageriseswiki.com copyright claim, drapia.org these legal representatives said.

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

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

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

"There's a substantial concern in copyright law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily unprotected realities," he added.

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

That's unlikely, the legal representatives said.

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

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

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

"Maybe it's more transformative to turn news articles into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek is said to have actually done, Kortz said.

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

A breach-of-contract suit is more likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it comes with its own set of problems, said Anupam Chander, who teaches technology 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 material as training fodder for a competing AI design.

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

"Not, 'You copied something from me,' but that you benefited from my model to do something that you were not enabled to do under our contract."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service need that many claims be dealt with through arbitration, not lawsuits. There's an exception for bphomesteading.com suits "to stop unapproved use or abuse of the Services or copyright violation or misappropriation."

There's a bigger drawback, however, specialists stated.

"You need to know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Expert System Regards To 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 impose these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for good reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part due to the fact that design outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it states.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts typically won't enforce 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 challenging, Kortz said.

Even if OpenAI cleared all the above difficulties and won a judgment from an US court or tandme.co.uk 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 said.

Here, OpenAI would be at the grace of another incredibly complex area of law - the enforcement of foreign judgments and the balancing of specific and business rights and nationwide sovereignty - that stretches back to before the founding of the US.

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

Could OpenAI have protected itself better from a distilling incursion?

"They could have utilized technical measures to obstruct repetitive access to their site," Lemley said. "But doing so would also hinder regular consumers."

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

Representatives for DeepSeek did not immediately react to a request for comment.

"We understand that groups in the PRC are actively working to use methods, including what's called distillation, to try to reproduce advanced U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.