OpenAI and the White House have 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 however are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press declarations, 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 design that's now almost as good.

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

OpenAI is not stating whether the business plans to pursue legal action, instead guaranteeing what a representative described "aggressive, proactive countermeasures to secure our innovation."

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

BI posed this question to experts in innovation law, who stated 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 an intellectual residential or commercial property or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - meaning the answers it produces in reaction to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

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

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

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

That's not likely, the legal representatives stated.

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 security.

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

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

"Maybe it's more transformative to turn news posts into a design" - 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 actually done, Kortz said.

"But this still puts OpenAI in a pretty challenging scenario with regard to the line it's been toeing relating to fair usage," he included.

A breach-of-contract lawsuit is more most likely

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

Related stories

The regards to service for addsub.wiki Big Tech chatbots like those established by OpenAI and Anthropic forbid using their content as training fodder for a competing AI design.

"So possibly that's the claim you may potentially 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 agreement."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service require that most claims be solved through arbitration, not lawsuits. There's an exception for "to stop unapproved usage or abuse of the Services or copyright violation or misappropriation."

There's a larger drawback, however, professionals said.

"You must understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander stated. He was describing a January 10 paper, "The Mirage of Artificial Intelligence Regards To 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 actually tried to implement these terms with monetary charges or injunctive relief," the paper states.

"This is likely for great reason: we think that the legal enforceability of these licenses is questionable," it adds. That's in part since design outputs "are mostly not copyrightable" and wiki.monnaie-libre.fr because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited recourse," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts normally won't impose contracts not to complete in the absence of an IP right that would avoid that competitors."

Lawsuits between celebrations in different countries, each with its own legal and enforcement systems, are constantly tricky, Kortz stated.

Even if OpenAI cleared all the above difficulties 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 come down to the Chinese legal system," he stated.

Here, OpenAI would be at the grace of another incredibly complex area of law - the enforcement of foreign judgments and the balancing of specific and business rights and national sovereignty - that extends back to before the founding of the US.

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

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

"They might have utilized technical procedures to block repetitive access to their website," Lemley said. "But doing so would likewise hinder typical consumers."

He included: "I do not 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 instantly react to a demand for remark.

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