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OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's regards to usage 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 bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and cheaply train a model that's now nearly as great.

The Trump administration's leading 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 examining whether "DeepSeek may have wrongly distilled our designs."

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

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

BI postured this concern to experts in technology law, who stated 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 hard time showing a copyright or copyright claim, these legal representatives stated.

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

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

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

"There's a substantial concern in copyright law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unprotected realities," he added.

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

That's not likely, the lawyers said.

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

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

There might be a distinction 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 accuses OpenAI of doing - "than it is to turn outputs of a model into another model," as DeepSeek is said to have actually done, Kortz said.

"But this still puts OpenAI in a quite tricky situation 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 features its own set of issues, stated Anupam Chander, who teaches technology 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 material as training fodder for a contending AI model.

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

"Not, 'You copied something from me,' however that you gained from my model to do something that you were not enabled to do under our agreement."

There might be a drawback, Chander and Kortz said. OpenAI's regards to service need that a lot of claims be solved through arbitration, not suits. There's an exception for suits "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

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

"You need to know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander stated. He was referring to 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 Infotech Policy.

To date, "no model developer has really tried to enforce these terms with monetary penalties or injunctive relief," the paper says.

"This is likely for good reason: 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 the Computer Fraud and Abuse Act "offer restricted option," it states.

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts generally will not implement agreements not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits in between parties in various nations, koha-community.cz each with its own legal and enforcement systems, are constantly challenging, .

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

Here, OpenAI would be at the mercy of another exceptionally complicated area of law - the enforcement of foreign judgments and the balancing of private and business rights and nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, made complex, filled process," Kortz included.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They might have used technical steps to obstruct repeated access to their site," Lemley stated. "But doing so would also hinder typical consumers."

He added: "I do not think they could, or should, have a legitimate legal claim versus the browsing of uncopyrightable details from a public site."

Representatives for DeepSeek did not immediately react to a demand for remark.

"We understand that groups in the PRC are actively working to use techniques, including what's referred to as distillation, to attempt to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.