OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to usage may use but are mostly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, they said the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to quickly and cheaply train a model that's now almost as good.

The Trump administration's top AI czar said this training process, called "distilling," totaled up to intellectual property theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our designs."

OpenAI is not stating whether the company prepares to pursue legal action, rather guaranteeing what a representative described "aggressive, proactive countermeasures to protect our innovation."

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

BI presented this question to professionals 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 hard time proving a copyright or funsilo.date copyright claim, these legal representatives stated.

"The concern is whether ChatGPT outputs" - meaning the responses it creates in action 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 certify as "imagination," he said.

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

"There's a substantial question in copyright law today about whether the outputs of a generative AI can ever constitute creative expression or if they are always unprotected realities," he added.

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

That's unlikely, the legal representatives 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 defense.

If they do a 180 and valetinowiki.racing inform DeepSeek that training is not a fair use, "that might return to sort of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply saying that training is reasonable use?'"

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

"Maybe it's more transformative to turn news posts 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 actually done, wiki.whenparked.com Kortz said.

"But this still puts OpenAI in a pretty predicament with regard to the line it's been toeing concerning fair usage," 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 issues, said Anupam Chander, who teaches innovation law at Georgetown University.

Related stories

The terms of service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid using their content as training fodder for a contending AI model.

"So maybe that's the suit you might 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 permitted to do under our agreement."

There may be a drawback, Chander and Kortz stated. OpenAI's terms of service require that a lot of claims be solved through arbitration, not claims. There's an exception for claims "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

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

"You must know that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. 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 Infotech Policy.

To date, "no model creator has in fact tried to implement these terms with monetary penalties or injunctive relief," the paper states.

"This is likely for good reason: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part because design 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 "deal restricted option," it states.

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

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, are constantly tricky, forum.altaycoins.com 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 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 incredibly complex area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have safeguarded itself better from a distilling incursion?

"They might have utilized technical steps to block repeated access to their website," Lemley said. "But doing so would also hinder typical clients."

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 instantly react to a demand for remark.

"We know that groups in the PRC are actively working to utilize approaches, including what's referred to as distillation, to attempt to duplicate innovative U.S. AI models," Donaldson, an OpenAI spokesperson, informed BI in an emailed declaration.