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OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI's terms of usage may apply but are mostly unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something comparable 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 data trove to quickly and inexpensively train a model that's now almost as excellent.

The Trump administration's top AI czar stated this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's whether "DeepSeek may have wrongly distilled our models."

OpenAI is not saying whether the company prepares to pursue legal action, rather guaranteeing what a spokesperson called "aggressive, proactive countermeasures to protect our technology."

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

BI posed this concern to experts in technology law, who said difficult DeepSeek in the courts would be an uphill battle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a tough time proving an intellectual residential or commercial property or copyright claim, these attorneys said.

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

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

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

"There's a huge concern in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily unprotected facts," he added.

Could OpenAI roll those dice anyway and declare that its outputs are protected?

That's not likely, the attorneys said.

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

If they do a 180 and timeoftheworld.date tell DeepSeek that training is not a fair usage, "that may return to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you just stating that training is reasonable usage?'"

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

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

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

A breach-of-contract claim is more most likely

A breach-of-contract suit is much likelier than an IP-based suit, kenpoguy.com though it features its own set of issues, said Anupam Chander, who teaches innovation 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 content as training fodder for a competing AI model.

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

"Not, 'You copied something from me,' but that you took advantage of 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 terms of service need that a lot of claims be dealt with through arbitration, not suits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

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

"You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander stated. 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 Infotech Policy.

To date, "no model developer has really attempted to implement these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for good factor: we think that the legal enforceability of these licenses is questionable," it includes. That's in part due to the fact that design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and 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, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts normally won't implement agreements not to complete in the absence of an IP right that would prevent that competition."

Lawsuits in between parties in various countries, each with its own legal and enforcement systems, are always difficult, Kortz stated.

Even if OpenAI cleared all the above obstacles and won a judgment from an US court or nerdgaming.science 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 mercy of another extremely complicated area of law - the enforcement of foreign judgments and the balancing of specific and business rights and nationwide sovereignty - that extends back to before the starting of the US.

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

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

"They might have used technical procedures to obstruct repetitive access to their site," Lemley said. "But doing so would also interfere with regular consumers."

He included: "I don't believe they could, or should, have a legitimate legal claim against the browsing of uncopyrightable information from a public website."

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

"We understand that groups in the PRC are actively working to utilize methods, including what's known as distillation, to attempt to duplicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.