OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and contract law.
- OpenAI's terms of use may use but are mostly unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

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

The Trump administration's leading AI czar stated this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not saying whether the company plans to pursue legal action, instead assuring what a representative described "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it take legal action against DeepSeek on "you took our content" grounds, much like the premises OpenAI was itself took legal action against on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI positioned this concern to professionals in technology law, who said 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 hard time proving an intellectual property or copyright claim, these attorneys said.

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

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

"There's a teaching that states imaginative expression is copyrightable, but realities 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 make up creative expression or if they are necessarily unprotected realities," he included.

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

That's unlikely, the attorneys stated.

OpenAI is currently on the record in The New york city Times' copyright case arguing that training AI is a permitted "fair use" exception to copyright security.

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

There might be a difference in 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 design into another design," as DeepSeek is stated to have done, Kortz said.

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

A breach-of-contract claim is most likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, though it comes with its own set of problems, said Anupam Chander, who teaches technology law at Georgetown University.

Related stories

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 possibly that's the claim you may potentially bring - a contract-based claim, not an IP-based claim," Chander stated.

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

There may be a hitch, Chander and bio.rogstecnologia.com.br Kortz stated. OpenAI's terms of service need that many claims be dealt with through arbitration, not claims. There's an exception for claims "to stop unauthorized usage or abuse of the Services or intellectual property infringement or misappropriation."

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

"You should understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. He was describing 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 forum.kepri.bawaslu.go.id Information Technology Policy.

To date, "no model creator has really tried to implement these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for good reason: we believe that the legal enforceability of these licenses is questionable," it adds. 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 limited option," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts generally will not enforce agreements not to complete in the absence 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 an US court or arbitrator, "in order to get DeepSeek to turn over cash 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 grace of another extremely complex area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that extends back to before the founding of the US.

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

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

"They could have used technical procedures to block repetitive access to their site," Lemley stated. "But doing so would likewise interfere with typical consumers."

He added: "I don't believe they could, or should, have a legitimate legal claim against the searching of uncopyrightable details from a public website."

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

"We understand that groups in the PRC are actively working to utilize approaches, including what's called distillation, to attempt to duplicate advanced U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.