OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under copyright and agreement law.
- OpenAI's terms of usage may apply but are mostly unenforceable, they say.
Today, OpenAI and the White House implicated 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 information trove to quickly and inexpensively train a design that's now nearly as great.

The Trump administration's top AI czar said this training process, called "distilling," totaled up to intellectual residential or commercial property theft. OpenAI, meanwhile, sitiosecuador.com 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 plans to pursue legal action, rather assuring what a representative described "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it sue DeepSeek on "you stole our content" premises, 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 presented this to experts in innovation law, who stated challenging DeepSeek in the courts would be an uphill battle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing a copyright or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - meaning the answers it creates in action to questions - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's since it's unclear whether the answers ChatGPT spits out qualify as "imagination," he stated.

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

"There's a big concern in copyright law today about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily vulnerable truths," he added.

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

That's not likely, the attorneys said.

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

If they do a 180 and inform DeepSeek that training is not a fair usage, "that may return to sort of bite them," Kortz stated. "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 added.

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

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

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based claim, though it includes its own set of issues, said Anupam Chander, 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 utilizing their material as training fodder for a competing AI design.

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

"Not, 'You copied something from me,' however that you took advantage of my design to do something that you were not enabled to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's terms of service require that the majority of claims be dealt with through arbitration, not suits. There's an exception for claims "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a larger drawback, however, professionals stated.

"You must understand that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander stated. 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 Infotech Policy.

To date, "no design creator has actually attempted to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for excellent factor: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part since 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 restricted recourse," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts usually will not enforce contracts not to complete in the lack of an IP right that would prevent that competitors."

Lawsuits between parties in different nations, each with its own legal and enforcement systems, are constantly challenging, Kortz stated.

Even if OpenAI cleared all the above difficulties 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 come down to the Chinese legal system," he stated.

Here, bbarlock.com OpenAI would be at the mercy of another incredibly complex area of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that stretches back to before the founding of the US.

"So this is, a long, made complex, fraught process," Kortz added.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have utilized technical measures to obstruct repeated access to their website," Lemley said. "But doing so would also disrupt typical consumers."

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

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

"We understand that groups in the PRC are actively working to use approaches, including what's called distillation, to try to reproduce sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.