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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 say OpenAI has little recourse under intellectual home and agreement law.
- OpenAI's regards to usage may use however are mostly unenforceable, they say.
This week, forum.kepri.bawaslu.go.id OpenAI and the White House implicated DeepSeek of something akin to theft.

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

The Trump administration's leading AI czar stated this training procedure, called "distilling," amounted to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not stating whether the company plans to pursue legal action, instead promising what a spokesperson termed "aggressive, proactive countermeasures to secure our innovation."

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

BI postured this concern to specialists in technology law, who stated difficult 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 difficult time proving a copyright or copyright claim, these lawyers stated.

"The question is whether ChatGPT outputs" - meaning the responses it produces in response to queries - "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 "creativity," he said.

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

"There's a huge question in copyright law today about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily unguarded facts," he included.

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

That's not likely, the attorneys said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is a permitted "fair usage" exception to copyright defense.

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

There may be a difference in between the Times and DeepSeek cases, Kortz included.

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

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

A breach-of-contract lawsuit is more likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with its own set of issues, stated Anupam Chander, who teaches innovation law at Georgetown University.

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The regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as training fodder for a completing AI model.

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

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

There might be a hitch, Chander and wiki.rrtn.org Kortz stated. OpenAI's terms of need that most claims be dealt with through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or intellectual home infringement or misappropriation."

There's a bigger drawback, though, specialists said.

"You need to understand that the fantastic 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 Artificial Intelligence 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 attempted to impose these terms with financial charges or injunctive relief," the paper states.

"This is most likely for great factor: we think that the legal enforceability of these licenses is questionable," it includes. That's in part since model outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal option," it states.

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

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

Even if OpenAI cleared all the above obstacles and won a judgment from an US court or arbitrator, "in order to get DeepSeek to turn over cash 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 grace of another very complicated area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and nationwide sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have protected itself better from a distilling attack?

"They might have used technical procedures to block repeated access to their website," Lemley stated. "But doing so would also hinder regular clients."

He included: "I do not think they could, or should, have a valid legal claim against the searching of uncopyrightable info from a public site."

Representatives for DeepSeek did not instantly react to a demand for remark.

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