OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual property and agreement law.
- OpenAI's terms of use may use however are mainly unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press declarations, they stated the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to quickly and cheaply train a design that's now practically as good.

The Trump administration's leading AI czar said this training process, called "distilling," amounted to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not stating whether the company prepares to pursue legal action, instead assuring what a representative called "aggressive, proactive countermeasures to protect our technology."

But could it? Could it sue DeepSeek on "you stole our material" grounds, much like the grounds OpenAI was itself took legal action against on in an ongoing copyright claim filed in 2023 by The New York Times and other news outlets?

BI positioned this concern to professionals in innovation law, who said challenging DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing an intellectual property or copyright claim, these legal representatives said.

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

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

"There's a doctrine that states imaginative expression is copyrightable, however facts and ideas 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 constitute innovative expression or if they are necessarily unprotected truths," he added.

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

That's unlikely, the legal representatives stated.

OpenAI is already on the record in The New york city Times' copyright case arguing that training AI is an allowable "reasonable use" exception to copyright protection.

If they do a 180 and tell DeepSeek that training is not a fair use, "that may come back to kind of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you just saying that training is reasonable usage?'"

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

"Maybe it's more transformative to turn news posts into a model" - 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 done, Kortz said.

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

A breach-of-contract claim is most likely

A breach-of-contract claim is much likelier than an IP-based claim, though it features its own set of problems, 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 content as training fodder for a completing AI model.

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

"Not, 'You copied something from me,' however that you took advantage of my model to do something that you were not permitted to do under our agreement."

There might be a hitch, Chander and Kortz stated. OpenAI's terms of service need that the majority of claims be solved through arbitration, gdprhub.eu not lawsuits. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or copyright infringement or misappropriation."

There's a larger hitch, though, specialists said.

"You need to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are most 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 design developer has in fact attempted to implement these terms with financial charges or injunctive relief," the paper says.

"This is most likely for great reason: we think that the legal enforceability of these licenses is doubtful," it includes. That remains in part because design outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and pyra-handheld.com Abuse Act "offer minimal recourse," 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 normally won't implement contracts not to complete in the lack of an IP right that would avoid that competitors."

Lawsuits in between celebrations in different countries, each with its own legal and enforcement systems, are constantly challenging, Kortz stated.

Even if OpenAI cleared all the above obstacles and won a 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 exceptionally complex area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that extends back to before the starting of the US.

"So this is, a long, made complex, filled procedure," Kortz added.

Could OpenAI have protected itself better from a distilling incursion?

"They could have utilized technical steps to block repetitive access to their site," Lemley said. "But doing so would also hinder normal customers."

He added: "I don't think they could, or should, have a legitimate legal claim versus the searching of uncopyrightable info from a public site."

Representatives for DeepSeek did not instantly react to a request for remark.

"We understand that groups in the PRC are actively working to use methods, including what's called distillation, to try to duplicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.