OpenAI and the White House have actually accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's regards to usage might use but are largely unenforceable, they say.
This week, library.kemu.ac.ke OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, bphomesteading.com they stated the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to quickly and inexpensively train a design that's now nearly as good.

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

OpenAI is not saying whether the business prepares to pursue legal action, instead promising what a spokesperson described "aggressive, proactive countermeasures to safeguard our technology."

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

BI presented this question 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 tough time showing a copyright or copyright claim, these attorneys said.

"The question is whether ChatGPT outputs" - suggesting the answers it produces in response to questions - "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 said.

"There's a doctrine 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 question in copyright law today about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected truths," he added.

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

That's unlikely, the attorneys said.

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

If they do a 180 and tell DeepSeek that training is not a fair use, "that might return to kind of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you just saying that training is fair usage?'"

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

"Maybe it's more transformative to turn news short articles 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 done, Kortz said.

"But this still puts OpenAI in a quite predicament 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 suit is much likelier than an IP-based lawsuit, though it includes 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 established by OpenAI and Anthropic forbid using their content as training fodder for a completing AI model.

"So possibly 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 gained from my design to do something that you were not allowed to do under our contract."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service need that many claims be solved through arbitration, not suits. There's an exception for suits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

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

"You need to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander stated. 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 Infotech Policy.

To date, "no model developer has actually attempted to implement these terms with monetary charges or injunctive relief," the paper states.

"This is likely for good factor: we believe that the legal enforceability of these licenses is questionable," it adds. That's in part since 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 minimal recourse," it says.

"I think they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts typically won't implement arrangements not to complete in the absence of an IP right that would prevent that competition."

Lawsuits in between parties in different nations, each with its own legal and enforcement systems, are always tricky, Kortz stated.

Even if OpenAI cleared all the above obstacles 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 grace of another very complex location of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that extends back to before the starting of the US.

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

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

"They might have used technical steps to block repeated access to their site," Lemley said. "But doing so would likewise disrupt regular clients."

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

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

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