OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under intellectual residential or commercial property and contract law.
- OpenAI's terms of use may apply however are mostly unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something comparable to theft.

In a flurry of press declarations, they stated the Chinese upstart had bombarded OpenAI's with queries and hoovered up the resulting information trove to rapidly and inexpensively train a design that's now practically as great.

The Trump administration's top AI czar stated this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have wrongly distilled our models."

OpenAI is not saying whether the business plans to pursue legal action, rather assuring what a spokesperson termed "aggressive, proactive countermeasures to protect our technology."

But could it? Could it sue DeepSeek on "you took our material" grounds, just like the grounds OpenAI was itself sued on in an ongoing copyright claim filed in 2023 by The New York Times and other news outlets?

BI positioned this question to specialists in technology law, who said tough 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 showing an intellectual home or copyright claim, these lawyers stated.

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

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

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

"There's a huge concern in copyright law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are always unguarded facts," he added.

Could OpenAI roll those dice anyhow 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 allowable "fair usage" exception to copyright defense.

If they do a 180 and inform DeepSeek that training is not a reasonable usage, "that might return to type of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply 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 posts into a design" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek is stated to have done, Kortz stated.

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

A breach-of-contract claim is more likely

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

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The regards to service for wiki.vst.hs-furtwangen.de Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as training fodder for a contending AI model.

"So possibly that's the claim you may 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 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 regards to service need that many claims be solved through arbitration, not claims. There's an exception for claims "to stop unapproved usage or abuse of the Services or intellectual home violation or misappropriation."

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

"You need to understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander said. He was referring to 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 Information Technology Policy.

To date, "no design creator has actually tried to enforce these terms with financial charges or injunctive relief," the paper states.

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

"I believe they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts normally will not enforce agreements not to contend in the absence of an IP right that would prevent that competition."

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

Even if OpenAI cleared all the above obstacles and disgaeawiki.info 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 stated.

Here, OpenAI would be at the grace of another exceptionally complex area of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that extends back to before the starting of the US.

"So this is, a long, complicated, filled process," Kortz added.

Could OpenAI have secured itself better from a distilling attack?

"They could have used technical steps to obstruct repeated access to their website," Lemley said. "But doing so would also hinder typical consumers."

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

Representatives for DeepSeek did not immediately react to a request for remark.

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