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OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to usage may use but are mainly unenforceable, they say.
Today, hb9lc.org OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to rapidly and cheaply train a model that's now nearly as great.

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

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

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

BI postured this question to experts in technology law, who stated tough 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 difficult time showing a copyright or copyright claim, these attorneys said.

"The question is whether ChatGPT outputs" - indicating the responses it creates in response to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

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

"There's a substantial concern in copyright law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily unprotected facts," he added.

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

That's unlikely, the lawyers said.

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

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

There might be a difference in between the Times and DeepSeek cases, utahsyardsale.com Kortz included.

"Maybe it's more transformative to turn news short articles into a design" - as the Times accuses 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 quite predicament with regard to the line it's been toeing concerning fair usage," he added.

A breach-of-contract claim is most likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, though it features its own set of problems, said Anupam Chander, engel-und-waisen.de who teaches innovation law at Georgetown University.

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The regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid using their material 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 model to do something that you were not allowed to do under our agreement."

There may be a drawback, online-learning-initiative.org Chander and Kortz stated. OpenAI's regards to service require that the majority of claims be fixed through arbitration, not lawsuits. There's an exception for kenpoguy.com claims "to stop unapproved usage or abuse of the Services or copyright infringement or misappropriation."

There's a larger hitch, though, experts said.

"You ought to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander said. He was referring to 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 model developer has in fact attempted to impose these terms with financial penalties or injunctive relief," the paper states.

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

"I believe 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 due to the fact that courts generally will not enforce agreements not to compete in the absence of an IP right that would avoid that competitors."

Lawsuits between parties in different 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 an US 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 stated.

Here, systemcheck-wiki.de OpenAI would be at the grace of another exceptionally complicated location of law - the enforcement of foreign judgments and the balancing of private and corporate rights and national sovereignty - that stretches back to before the founding of the US.

"So this is, a long, complicated, fraught procedure," Kortz added.

Could OpenAI have secured itself better from a distilling attack?

"They could have utilized technical procedures to block repetitive access to their site," Lemley stated. "But doing so would likewise hinder regular consumers."

He added: "I don't think they could, or should, have a valid legal claim versus the browsing of uncopyrightable information from a public website."

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 attempt to reproduce sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.