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OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI's regards to use might use however are mainly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press declarations, they said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting information trove to quickly and inexpensively train a model that's now nearly as great.

The Trump administration's top AI czar said this training process, called "distilling," amounted to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not stating whether the business plans to pursue legal action, rather guaranteeing what a representative described "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it take legal action against DeepSeek on "you stole our material" premises, similar to the premises OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI positioned this question to specialists in technology law, who said challenging DeepSeek in the courts would be an uphill battle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing an intellectual residential or commercial property or copyright claim, these attorneys said.

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

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

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

"There's a huge question in intellectual property law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unguarded facts," he included.

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

That's not likely, the legal representatives stated.

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 protection.

If they do a 180 and inform DeepSeek that training is not a fair usage, "that may return 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 distinction between the Times and DeepSeek cases, Kortz included.

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

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

A breach-of-contract claim is more most likely

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

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

"So possibly that's the lawsuit you may possibly bring - a contract-based claim, not an IP-based claim," said.

"Not, 'You copied something from me,' however that you gained from my design to do something that you were not permitted to do under our agreement."

There might be a hitch, Chander and Kortz said. OpenAI's regards to service need that a lot of claims be fixed through arbitration, not claims. There's an exception for suits "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a larger drawback, however, professionals said.

"You must understand that the dazzling 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 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 model creator has really attempted to implement these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for great factor: we think that the legal enforceability of these licenses is doubtful," it includes. That's in part due to the fact that model outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited 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 normally won't enforce arrangements not to complete in the lack of an IP right that would prevent that competitors."

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

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 mercy of another exceptionally 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, complicated, fraught process," Kortz added.

Could OpenAI have secured itself better from a distilling incursion?

"They might have utilized technical measures to obstruct repetitive access to their website," Lemley said. "But doing so would also interfere with regular clients."

He included: "I don't think they could, or should, have a legitimate legal claim against the browsing of uncopyrightable info from a public site."

Representatives for DeepSeek did not right away react to an ask for comment.

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