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 intellectual home and agreement law.
- OpenAI's regards to usage might apply however are largely unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something similar to theft.

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

The Trump administration's top AI czar said this training procedure, called "distilling," totaled up to copyright theft. OpenAI, raovatonline.org meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

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

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

BI presented this concern to professionals in technology law, who said difficult DeepSeek in the courts would be an uphill fight 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 stated.

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

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

"There's a teaching that says imaginative expression is copyrightable, but realities and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a substantial question in intellectual property law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always unprotected facts," he included.

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

That's unlikely, the attorneys stated.

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

If they do a 180 and tell DeepSeek that training is not a reasonable usage, "that might return to sort of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you simply saying that training is reasonable use?'"

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

"Maybe it's more transformative to turn news short articles 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 difficult scenario with regard to the line it's been toeing regarding fair use," he included.

A breach-of-contract claim is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with its own set of issues, said Anupam Chander, 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 content as training fodder for a competing AI model.

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

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

There may be a drawback, Chander and Kortz said. OpenAI's regards to service need that most claims be dealt with through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or intellectual property infringement or misappropriation."

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

"You ought to know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to use are 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 model creator has in fact attempted to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is likely for good reason: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part due to the fact that model outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

"I think they are most 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 typically won't enforce agreements not to contend in the absence of an IP right that would prevent that competition."

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, are always difficult, 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 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 mercy of another very complicated area of law - the enforcement of foreign judgments and the balancing of individual and corporate 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 safeguarded itself much better from a ?

"They could have utilized technical measures to block repeated access to their site," Lemley said. "But doing so would likewise hinder normal consumers."

He added: "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 immediately react to an ask for comment.

"We understand that groups in the PRC are actively working to utilize approaches, including what's known as distillation, to attempt to replicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.