OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual property and agreement law.
- OpenAI's regards to use may apply but are mainly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press statements, they said 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 practically as great.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to intellectual property theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not saying whether the company prepares to pursue legal action, instead promising what a representative described "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our material" premises, similar to the grounds OpenAI was itself took legal action against on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI postured this question to specialists 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 difficult time showing an intellectual residential or commercial property or copyright claim, these lawyers said.

"The concern is whether ChatGPT outputs" - indicating the answers it produces in reaction to queries - "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 "imagination," he said.

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

"There's a substantial question in copyright law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily vulnerable facts," he added.

Could OpenAI roll those dice anyway and declare that its are secured?

That's not likely, the attorneys stated.

OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is a permitted "reasonable usage" exception to copyright protection.

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

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

"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 actually done, Kortz stated.

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

A breach-of-contract lawsuit is more likely

A breach-of-contract suit is much likelier than an IP-based suit, though it includes 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 developed by OpenAI and Anthropic forbid using their content as training fodder for a competing AI model.

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

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

There may be a hitch, Chander and Kortz stated. OpenAI's terms of service need that a lot of claims be resolved through arbitration, not claims. There's an exception for suits "to stop unapproved usage or abuse of the Services or copyright infringement or misappropriation."

There's a bigger hitch, mariskamast.net however, professionals said.

"You should understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are most 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 Information Technology Policy.

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

"This is likely for excellent reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part because model outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted option," it says.

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

Lawsuits in between celebrations in various nations, each with its own legal and enforcement systems, are constantly difficult, Kortz stated.

Even if OpenAI cleared all the above hurdles and won a judgment from an US court or bio.rogstecnologia.com.br 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 very complex location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and nationwide sovereignty - that extends back to before the founding of the US.

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

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

"They might have used technical procedures to obstruct repetitive access to their website," Lemley said. "But doing so would also interfere with regular customers."

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

Representatives for higgledy-piggledy.xyz DeepSeek did not immediately react to a request for comment.

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