OpenAI and the White House have actually accused DeepSeek of using 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 use may apply however are mainly unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting information trove to rapidly and inexpensively train a model that's now practically as excellent.

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

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

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

BI presented this concern to experts in innovation law, who said challenging DeepSeek in the courts would be an for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a hard time proving an intellectual home or genbecle.com copyright claim, these legal representatives stated.

"The question is whether ChatGPT outputs" - implying the responses it creates in response to inquiries - "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 certify as "creativity," he said.

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

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

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

That's not likely, the attorneys said.

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

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

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

"Maybe it's more transformative to turn news articles into a design" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek is said to have actually done, Kortz said.

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

A breach-of-contract lawsuit is more most likely

A breach-of-contract suit is much likelier than an IP-based suit, though it includes its own set of issues, stated Anupam Chander, who teaches technology law at Georgetown University.

Related stories

The terms of service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid using their content as training fodder for a competing AI model.

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

"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 contract."

There may be a hitch, Chander and Kortz stated. OpenAI's terms of service need that many claims be fixed through arbitration, not lawsuits. There's an exception for claims "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

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

"You need to know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander stated. He was describing a January 10 paper, "The Mirage of Expert System Regards To Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no design developer has really tried to implement these terms with monetary charges or injunctive relief," the paper says.

"This is likely for excellent factor: we believe that the legal enforceability of these licenses is questionable," it includes. That remains in part due to the fact that design outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited recourse," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and since courts usually won't enforce arrangements not to complete in the lack of an IP right that would prevent that competitors."

Lawsuits between parties in various countries, each with its own legal and enforcement systems, are always challenging, Kortz stated.

Even if OpenAI cleared all the above hurdles 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 said.

Here, OpenAI would be at the mercy of another very complicated location of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and nationwide sovereignty - that stretches back to before the founding of the US.

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

Could OpenAI have protected itself better from a distilling incursion?

"They might have used technical measures to obstruct repeated access to their site," Lemley said. "But doing so would also hinder regular clients."

He added: "I don't believe they could, or should, have a legitimate legal claim against the browsing of uncopyrightable info from a public site."

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

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