OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's terms of usage might apply but are mainly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something comparable 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 information trove to rapidly and inexpensively train a model that's now nearly as good.

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

OpenAI is not stating whether the business prepares to pursue legal action, rather assuring what a spokesperson called "aggressive, proactive countermeasures to secure our innovation."

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

BI posed this concern to specialists 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 tough time showing a copyright or copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - indicating the responses it produces in response to questions - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's due to the fact that it's unclear whether the answers ChatGPT spits out qualify as "imagination," he said.

"There's a teaching that states innovative 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 home law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily vulnerable realities," he added.

Could OpenAI roll those dice anyhow and claim that its outputs are secured?

That's not likely, the lawyers 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 protection.

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

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

"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 design into another design," as DeepSeek is stated to have done, Kortz stated.

"But this still puts OpenAI in a quite predicament with regard to the line it's been toeing regarding fair usage," 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, said Anupam Chander, who teaches technology 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 content as training fodder for photorum.eclat-mauve.fr a competing AI design.

"So possibly that's the suit you may potentially 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 enabled to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's terms of service require that most claims be dealt with through arbitration, not suits. There's an for suits "to stop unauthorized use or abuse of the Services or intellectual home violation or misappropriation."

There's a bigger drawback, however, experts stated.

"You must know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander stated. He was referring to 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 developer has in fact tried to enforce these terms with monetary penalties or injunctive relief," the paper states.

"This is likely for great factor: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part since design outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts generally will not enforce agreements not to compete in the lack of an IP right that would prevent that competitors."

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

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 come down to the Chinese legal system," he stated.

Here, OpenAI would be at the grace of another exceptionally complex location 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, laden procedure," Kortz included.

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

"They could have utilized technical measures to obstruct repetitive access to their site," Lemley said. "But doing so would likewise interfere with normal clients."

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

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

"We understand that groups in the PRC are actively working to use methods, including what's referred to as distillation, to attempt to duplicate sophisticated U.S. AI models," Rhianna Donaldson, galgbtqhistoryproject.org an OpenAI representative, informed BI in an emailed statement.