OpenAI and the White House have actually accused DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI's terms of use might apply however are largely unenforceable, they say.
Today, 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 cheaply train a model that's now practically as excellent.

The Trump administration's top AI czar said this training process, called "distilling," totaled up to intellectual home theft. OpenAI, on the other hand, informed 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, visualchemy.gallery instead guaranteeing what a spokesperson described "aggressive, proactive countermeasures to protect our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our content" premises, just like the grounds OpenAI was itself sued on in an ongoing copyright claim filed in 2023 by The New York City Times and other news outlets?

BI presented this question to professionals in innovation law, who stated tough 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 hard time showing a copyright or copyright claim, these lawyers stated.

"The concern is whether ChatGPT outputs" - implying the answers it in action to inquiries - "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 stated.

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

"There's a big concern in intellectual home law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are always vulnerable truths," he added.

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

That's unlikely, 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 use" exception to copyright protection.

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

There might be a difference in 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 model," as DeepSeek is said to have done, Kortz stated.

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

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, championsleage.review though it comes with its own set of problems, stated 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 utilizing their content as training fodder for a competing AI design.

"So perhaps that's the claim you might possibly 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 agreement."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service need that a lot of claims be solved through arbitration, not claims. There's an exception for suits "to stop unauthorized use or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

There's a larger hitch, however, professionals stated.

"You must understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are most 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 Infotech Policy.

To date, "no model developer has in fact tried to impose these terms with monetary 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's in part due to the fact that model outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," it says.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts typically will not implement agreements not to complete in the lack of an IP right that would prevent that competitors."

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

Even if OpenAI cleared all the above obstacles and won a judgment from a United States court or 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 grace of another exceptionally complex area of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that extends back to before the starting of the US.

"So this is, a long, made complex, stuffed process," Kortz added.

Could OpenAI have protected itself much better from a distilling attack?

"They could have used technical procedures to obstruct repeated access to their site," Lemley said. "But doing so would likewise interfere with normal clients."

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

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

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