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OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual property and agreement law.
- OpenAI's terms of usage may apply but are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something comparable to theft.

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

The Trump administration's leading 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 wrongly distilled our designs."

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

But could it? Could it sue DeepSeek on "you stole our content" grounds, similar to the premises OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI presented this concern to professionals in innovation 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 difficult time proving a copyright or copyright claim, these attorneys said.

"The question is whether ChatGPT outputs" - implying the responses it produces in action to queries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

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

"There's a big question in intellectual property law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are always vulnerable realities," he included.

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

That's not likely, the lawyers stated.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is a permitted "fair usage" exception to copyright protection.

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

There might 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 accuses OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is said to have done, iwatex.com Kortz stated.

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

A breach-of-contract claim is more most likely

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

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

"So perhaps that's the suit you might 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 permitted to do under our contract."

There might be a hitch, Chander and Kortz said. OpenAI's terms of service require that a lot of claims be resolved through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

There's a bigger drawback, though, specialists stated.

"You need to understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander said. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence 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 developer has really attempted to enforce these terms with monetary charges or injunctive relief," the paper states.

"This is most likely for good factor: we think that the legal enforceability of these licenses is doubtful," it includes. That remains in part since model outputs "are mostly not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal option," it says.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts typically won't implement arrangements not to complete in the absence of an IP right that would avoid that competition."

Lawsuits between celebrations in various nations, thatswhathappened.wiki each with its own legal and enforcement systems, are constantly challenging, wolvesbaneuo.com Kortz said.

Even if OpenAI cleared all the above hurdles and won a judgment from an US court or bbarlock.com 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 stated.

Here, OpenAI would be at the grace of another extremely complex area of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have protected itself better from a distilling attack?

"They might have utilized technical procedures to obstruct repeated access to their website," Lemley said. "But doing so would also hinder regular clients."

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

Representatives for DeepSeek did not right away react to an ask for comment.

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