OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's regards to use may use however are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

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

The Trump administration's leading AI czar stated this training process, called "distilling," amounted to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek might have wrongly distilled our designs."

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

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

BI posed this concern to experts in innovation law, who stated 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 tough time proving a copyright or copyright claim, these attorneys stated.

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

That's due to the fact that it's uncertain whether the answers ChatGPT spits out qualify as "creativity," he stated.

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

"There's a big question in intellectual home law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are always unprotected realities," he included.

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

That's not likely, the lawyers said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is an allowed "fair usage" exception to copyright security.

If they do a 180 and inform DeepSeek that training is not a fair use, "that may come back to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is fair use?'"

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

"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 actually done, Kortz stated.

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

A breach-of-contract lawsuit is most likely

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

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

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

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

There might be a drawback, Chander and Kortz stated. OpenAI's terms of service require that most claims be fixed through arbitration, not suits. 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, specialists stated.

"You must understand that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Expert System 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 in fact attempted to impose these terms with monetary charges or injunctive relief," the paper states.

"This is likely for excellent reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part because design outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it states.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts generally will not enforce arrangements not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, are constantly tricky, Kortz stated.

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 very complicated area of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that stretches back to before the founding of the US.

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

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

"They could have utilized technical measures to obstruct repetitive access to their website," Lemley said. "But doing so would also disrupt typical clients."

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

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

"We know that groups in the PRC are actively working to use approaches, including what's called distillation, to attempt to replicate advanced U.S. AI designs," Donaldson, an OpenAI representative, told BI in an emailed statement.