OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual property and agreement law.
- OpenAI's regards to use may use however are mainly unenforceable, they say.
Today, OpenAI and the White House implicated 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 data trove to quickly and inexpensively train a design that's now practically as great.

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

OpenAI is not stating whether the company prepares to pursue legal action, instead promising what a spokesperson called "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it take legal action against DeepSeek on "you stole our material" grounds, similar to the premises OpenAI was itself took legal action against on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI postured this concern to experts in technology 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 difficult time showing a copyright or copyright claim, these attorneys stated.

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

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

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

"There's a huge concern in intellectual property law right now about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily unguarded realities," he included.

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

That's unlikely, the lawyers said.

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

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

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

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

"But this still puts OpenAI in a quite tricky situation with regard to the line it's been toeing relating to fair use," he included.

A breach-of-contract lawsuit is more likely

A breach-of-contract claim is much likelier than an IP-based lawsuit, though it includes 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 developed by OpenAI and Anthropic forbid using their material as training fodder for a completing AI model.

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

"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 contract."

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

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

"You need to understand 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 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 design developer has really tried to enforce these terms with monetary charges or injunctive relief," the paper states.

"This is likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part since model outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and hb9lc.org the Computer Fraud and Abuse Act "deal minimal option," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not impose agreements not to compete in the absence of an IP right that would prevent that competition."

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

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 money or stop doing what it's doing, the enforcement would come down to the Chinese legal system," he said.

Here, asystechnik.com OpenAI would be at the grace of another incredibly complicated 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, made complex, filled process," Kortz included.

Could OpenAI have protected itself better from a distilling attack?

"They could have used technical procedures to block repetitive access to their site," Lemley stated. "But doing so would also disrupt regular clients."

He included: "I do not think they could, or should, have a valid legal claim against the searching of uncopyrightable info from a public website."

Representatives for DeepSeek did not right away respond to an ask for remark.

"We understand that groups in the PRC are actively working to use approaches, including what's understood as distillation, to try to duplicate advanced U.S. AI designs," Rhianna Donaldson, an OpenAI representative, told BI in an emailed statement.