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 terms of usage may use but are largely unenforceable, they say.


Today, OpenAI and the White House implicated DeepSeek of something similar 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 information trove to quickly and cheaply train a design that's now almost as excellent.

The Trump administration's top AI czar said this training procedure, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our designs."

OpenAI is not saying whether the company plans to pursue legal action, instead assuring what a spokesperson termed "aggressive, proactive countermeasures to secure our innovation."

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

BI posed this question to professionals in technology law, who said 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 tough time proving a copyright or ratemywifey.com copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - implying the answers it creates in reaction to queries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

"There's a teaching that says creative expression is copyrightable, but facts and concepts are not," Kortz, wiki.vst.hs-furtwangen.de who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a substantial concern 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 unguarded realities," he included.

Could OpenAI roll those dice anyway 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 a permitted "fair usage" exception to copyright security.

If they do a 180 and inform DeepSeek that training is not a fair usage, "that might come back to kind of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you just saying that training is fair usage?'"

There might be a distinction 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 design into another design," as DeepSeek is said to have done, Kortz stated.

"But this still puts OpenAI in a quite challenging scenario with regard to the line it's been toeing regarding reasonable usage," he added.

A breach-of-contract suit is most likely

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

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

"So possibly that's the suit you may perhaps bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' but that you benefited from my design to do something that you were not permitted to do under our contract."

There may be a hitch, Chander and Kortz said. OpenAI's regards to service require that the majority of claims be solved through arbitration, not lawsuits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual home violation or misappropriation."

There's a bigger drawback, though, experts said.

"You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of 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 actually attempted to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for great factor: 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 mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it says.

"I believe they are most likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts generally won't implement agreements not to compete in the absence of an IP right that would prevent that competition."

Lawsuits between celebrations in various nations, each with its own legal and enforcement systems, are constantly challenging, 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 cash or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he said.

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

"So this is, a long, complicated, laden process," Kortz added.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They might have used technical measures to block repetitive access to their site," Lemley stated. "But doing so would likewise disrupt typical clients."

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

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

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