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 recourse under copyright and agreement law.
- regards to usage might apply but are largely unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

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

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

OpenAI is not saying whether the company prepares to pursue legal action, rather assuring what a representative called "aggressive, proactive countermeasures to safeguard our innovation."

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

BI presented this question to specialists in technology law, iuridictum.pecina.cz who said tough 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 attorneys said.

"The concern is whether ChatGPT outputs" - suggesting the responses it creates in response to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's because it's uncertain whether the responses ChatGPT spits out certify as "creativity," he stated.

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

"There's a substantial concern in intellectual property law today about whether the outputs of a generative AI can ever make up innovative expression or if they are always vulnerable truths," he included.

Could OpenAI roll those dice anyhow and claim 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 allowed "fair usage" exception to copyright security.

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

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

"Maybe it's more transformative to turn news short articles into a design" - 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 done, Kortz said.

"But this still puts OpenAI in a quite tricky scenario with regard to the line it's been toeing relating to reasonable use," he added.

A breach-of-contract suit is most likely

A breach-of-contract suit is much likelier than an IP-based suit, though it features 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 utilizing their content as training fodder for a completing AI design.

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

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

There may be a hitch, Chander and Kortz said. OpenAI's regards to service require that the majority of claims be fixed through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

There's a bigger drawback, however, experts said.

"You must know that the fantastic 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 Information Technology Policy.

To date, "no design creator has really tried to impose these terms with monetary penalties or injunctive relief," the paper says.

"This is likely for excellent reason: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part since model outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal recourse," it says.

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts typically will not impose agreements not to contend in the lack of an IP right that would avoid that competition."

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, are constantly challenging, Kortz said.

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 said.

Here, OpenAI would be at the mercy of another incredibly complex area of law - the enforcement of foreign judgments and surgiteams.com 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, complicated, fraught procedure," Kortz added.

Could OpenAI have secured itself better from a distilling attack?

"They could have used technical steps to block repeated access to their website," Lemley said. "But doing so would likewise hinder normal clients."

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

Representatives for DeepSeek did not right away respond to an ask for remark.

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