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OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under intellectual residential or commercial property and agreement law.
- OpenAI's terms of use may use however are mostly unenforceable, they state.
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 quickly and inexpensively train a design that's now practically as good.

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

OpenAI is not saying 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 stole 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 positioned this concern to specialists in technology law, who said challenging 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 an intellectual home or copyright claim, these legal representatives said.

"The question is whether ChatGPT outputs" - meaning the responses it creates in action to queries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

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

"There's a big question in intellectual residential or commercial property law today 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 not likely, the attorneys said.

OpenAI is already on the record in The New York Times' copyright case arguing that training AI is an allowable "fair use" exception to copyright defense.

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 state, 'Hey, weren't you just stating that training is fair use?'"

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

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

"But this still puts OpenAI in a quite difficult scenario with regard to the line it's been toeing relating to reasonable usage," he included.

A breach-of-contract claim is more likely

A breach-of-contract suit is much likelier than an IP-based suit, though it features its own set of issues, stated Anupam Chander, who teaches innovation 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 possibly that's the suit 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 enabled to do under our agreement."

There might be a drawback, Chander and Kortz said. OpenAI's terms of service need that most claims be solved through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

There's a bigger hitch, though, experts stated.

"You ought to understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander stated. 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 Information Technology Policy.

To date, "no model developer has actually tried to impose these terms with financial penalties 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 largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it says.

"I believe they are most likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts typically will not implement arrangements not to complete in the absence of an IP right that would avoid that competitors."

Lawsuits 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 hurdles and won a judgment from a United States 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 mercy of another very complex area of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that stretches back to before the starting of the US.

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

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

"They might have utilized technical steps to obstruct repetitive access to their website," Lemley stated. "But doing so would also interfere with typical consumers."

He included: "I do not think they could, or should, have a legitimate legal claim versus the browsing of uncopyrightable info from a public website."

Representatives for DeepSeek did not instantly react to an ask for comment.

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