OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual home and contract law.
- OpenAI's terms of usage might apply however are mainly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

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

The Trump administration's top AI czar stated this training procedure, called "distilling," amounted to intellectual home theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our designs."

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

But could it? Could it sue DeepSeek on "you took our content" premises, much like the grounds 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 posed this concern to specialists in innovation 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 difficult time showing an intellectual home or copyright claim, these lawyers stated.

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

That's due to the fact that it's uncertain whether the answers ChatGPT spits out certify as "imagination," he stated.

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

"There's a big concern in copyright law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unprotected facts," he added.

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

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 usage" exception to copyright security.

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

There might be a distinction in between the Times and DeepSeek cases, Kortz included.

"Maybe it's more transformative to turn news articles into a model" - 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, Kortz stated.

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

A breach-of-contract lawsuit is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it 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 developed by OpenAI and Anthropic forbid utilizing their content as training fodder for a contending AI design.

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

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

There might be a hitch, Chander and Kortz said. OpenAI's regards to service require that many claims be fixed through arbitration, not lawsuits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or intellectual property infringement or misappropriation."

There's a larger drawback, however, professionals said.

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence 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 in fact tried to enforce these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part because design outputs "are mainly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it says.

"I think they are most 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 because courts generally will not enforce arrangements not to compete in the lack of an IP right that would avoid that competition."

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

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 come down to the Chinese legal system," he said.

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

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

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have used technical steps to obstruct repetitive access to their website," Lemley said. "But doing so would also interfere with normal consumers."

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

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

"We understand that groups in the PRC are actively working to utilize approaches, including what's referred to as distillation, to try to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, wiki.vst.hs-furtwangen.de an OpenAI spokesperson, informed BI in an emailed statement.