OpenAI has Little Legal Recourse Versus DeepSeek, Tech Law Experts Say - free

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

In a flurry of press statements, they said the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to rapidly and cheaply train a design that's now almost as excellent.

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

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

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

BI presented this question to experts in technology law, who said difficult 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 a copyright or copyright claim, these legal representatives said.

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

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

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

"There's a huge concern in intellectual property law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unprotected truths," he included.

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

That's not likely, the legal representatives said.

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

If they do a 180 and tell DeepSeek that training is not a reasonable use, "that may come back to kind of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you just stating that training is fair usage?'"

There might 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 implicates OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is stated to have actually done, Kortz stated.

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

A breach-of-contract claim is most likely

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

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The terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as training fodder for a competing AI model.

"So perhaps that's the claim you might perhaps bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' but that you benefited from my design to do something that you were not allowed to do under our contract."

There might be a hitch, Chander and Kortz said. OpenAI's terms of service require that the majority of claims be solved through arbitration, not suits. There's an exception for claims "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

There's a larger drawback, though, experts stated.

"You need to know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander stated. 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 design developer has actually tried to implement these terms with financial charges or injunctive relief," the paper says.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is questionable," it includes. That remains in part because model outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and fishtanklive.wiki the Computer Fraud and Abuse Act "deal minimal option," it says.

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

Lawsuits in between parties in various 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 cash 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 mercy of another extremely complex area of law - the enforcement of foreign judgments and the balancing of specific and business rights and nationwide sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have protected itself better from a distilling incursion?

"They could have utilized technical measures to obstruct repetitive access to their website," Lemley stated. "But doing so would also hinder normal consumers."

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

Representatives for DeepSeek did not instantly react to a demand for remark.

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