OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.

- Experts in tech law say OpenAI has little recourse under copyright and contract law.

- OpenAI's terms of use may use however are mostly unenforceable, they say.


This week, OpenAI and the White House implicated DeepSeek of something comparable to theft.

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

The Trump administration's leading AI czar stated this training procedure, 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 models."

OpenAI is not stating whether the business plans to pursue legal action, instead guaranteeing what a spokesperson described "aggressive, proactive countermeasures to safeguard our technology."

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

BI posed this question to specialists in technology law, who said challenging DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a hard time proving a copyright or copyright claim, these attorneys stated.

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

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

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

"There's a substantial question in intellectual home law right now 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 anyway and declare that its outputs are secured?

That's unlikely, the attorneys stated.

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

If they do a 180 and complexityzoo.net tell DeepSeek that training is not a reasonable usage, "that might return to type of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is reasonable use?'"

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

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

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

A breach-of-contract suit is most likely

A breach-of-contract claim is much likelier than an IP-based lawsuit, though it includes its own set of problems, stated 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 using their material as training fodder for a competing AI model.

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

"Not, 'You copied something from me,' but that you gained from my design to do something that you were not permitted to do under our agreement."

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

There's a bigger drawback, trade-britanica.trade however, experts said.

"You ought to know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable," Chander stated. He was describing 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 creator has really tried to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is likely for great factor: we think that the legal enforceability of these licenses is questionable," it includes. That's in part due to the fact that design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and koha-community.cz the Computer Fraud and Abuse Act "deal restricted option," it says.

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

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

Even if OpenAI cleared all the above hurdles and won a judgment from a United States 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 mercy of another extremely complex area of law - the enforcement of foreign judgments and the balancing of specific and business rights and national sovereignty - that stretches back to before the starting of the US.

"So this is, a long, made complex, stuffed procedure," Kortz added.

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

"They might have utilized technical procedures to obstruct repeated access to their site," Lemley stated. "But doing so would also hinder normal consumers."

He included: "I don't think they could, or should, have a valid legal claim against the searching of uncopyrightable info from a public website."

Representatives for DeepSeek did not instantly react to an ask for comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's known as distillation, to try to replicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.