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OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual home and contract law.
- OpenAI's regards to use may use but are largely unenforceable, they say.
This week, 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 inquiries and hoovered up the resulting data trove to rapidly and inexpensively train a model that's now nearly as excellent.

The Trump administration's top AI czar said this training procedure, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not stating whether the business prepares to pursue legal action, rather assuring what a spokesperson called "aggressive, proactive countermeasures to secure our technology."

But could it? Could it sue DeepSeek on "you took our material" grounds, similar to the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI posed this concern to experts in technology law, who said difficult 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 tough time showing a copyright or copyright claim, these legal representatives said.

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

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

"There's a doctrine that states imaginative expression is copyrightable, however truths and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

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

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

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 allowed "fair use" exception to copyright protection.

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

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

"Maybe it's more transformative to turn news posts 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 quite predicament with regard to the line it's been toeing relating to fair usage," he added.

A breach-of-contract claim is most likely

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

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

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

There might be a hitch, Chander and Kortz stated. OpenAI's terms of service require that most claims be fixed through arbitration, vetlek.ru not suits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a larger hitch, though, specialists stated.

"You should know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to use are likely unenforceable," Chander said. 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 model developer has actually tried to enforce these terms with financial charges or injunctive relief," the paper states.

"This is most likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part due to the fact that 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 minimal option," it states.

"I think they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts generally will not impose contracts not to contend in the absence of an IP right that would avoid that competitors."

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

Even if OpenAI cleared all the above difficulties and won a from a United States court or arbitrator, "in order to get DeepSeek to turn over cash 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 very complicated location of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have protected itself better from a distilling attack?

"They could have utilized technical measures to block repetitive access to their site," Lemley stated. "But doing so would likewise disrupt normal clients."

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

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

"We understand that groups in the PRC are actively working to use approaches, including what's referred to as distillation, to try to replicate innovative U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.