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 copyright and agreement law.
- OpenAI's terms of usage may use however are mainly unenforceable, forum.batman.gainedge.org they say.
This week, OpenAI and the White House accused 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 information trove to rapidly and cheaply train a model that's now almost as good.

The Trump administration's top AI czar stated this training procedure, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, meanwhile, informed Business Insider and wiki.dulovic.tech other outlets that it's examining whether "DeepSeek may have inappropriately distilled our designs."

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

But could it? Could it take legal action against DeepSeek on "you took our content" grounds, much like the premises 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 concern to professionals 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 tough time proving an intellectual residential or commercial property or copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - indicating the answers it generates in action to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

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

"There's a substantial concern in copyright law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always unguarded realities," he added.

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

That's not likely, the lawyers stated.

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

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

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

"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 done, Kortz said.

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

A breach-of-contract claim is most likely

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

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

"So possibly that's the claim you might 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 design to do something that you were not enabled to do under our agreement."

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

There's a larger hitch, though, professionals said.

"You ought to know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to 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 tried to impose these terms with monetary charges or injunctive relief," the paper says.

"This is most likely for great reason: we think that the legal enforceability of these licenses is doubtful," it adds. That's in part due to the fact that design outputs "are mostly not copyrightable" and since laws like the Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it says.

"I think they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts normally will not enforce contracts not to complete in the lack of an IP right that would avoid 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 difficulties 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another very complex area of law - the enforcement of foreign judgments and the balancing of private and corporate rights and nationwide sovereignty - that stretches back to before the founding of the US.

"So this is, a long, made complex, laden process," Kortz included.

Could OpenAI have secured itself better from a distilling incursion?

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

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

Representatives for DeepSeek did not right away react to a demand for remark.

"We understand that groups in the PRC are actively working to use techniques, including what's called distillation, to attempt to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.