OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and contract law.
- OpenAI's terms of usage might use but are mostly unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something akin 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 design that's now almost as great.

The Trump administration's top AI czar stated this training process, called "distilling," amounted to copyright 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 business plans to pursue legal action, instead promising what a representative described "aggressive, proactive countermeasures to secure our technology."

But could it? Could it sue DeepSeek on "you stole our content" premises, just like the grounds 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 concern to specialists in innovation law, botdb.win who said difficult 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 tough time showing an intellectual residential or commercial property or copyright claim, these legal representatives stated.

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

That's due to the fact that it's unclear whether the responses ChatGPT spits out certify as "creativity," he said.

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

"There's a huge question in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily unguarded realities," he added.

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

That's unlikely, the legal representatives stated.

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

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

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

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

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

A breach-of-contract suit is more most likely

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

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The terms of service for 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 may potentially bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' but that you gained from my model to do something that you were not enabled to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service need that a lot of claims be solved through arbitration, not claims. There's an exception for claims "to stop unauthorized usage or abuse of the Services or copyright violation or misappropriation."

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

"You must know that the fantastic 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 model creator has actually tried to impose these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is questionable," it adds. That remains in part since design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

"I think they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts usually will not implement agreements not to contend in the lack of an IP right that would avoid that competition."

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

Even if OpenAI cleared all the above difficulties 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another extremely complex location of law - the enforcement of foreign judgments and the balancing of private and business rights and nationwide sovereignty - that extends back to before the founding of the US.

"So this is, a long, made complex, fraught process," Kortz added.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have used technical measures to obstruct repetitive access to their site," Lemley stated. "But doing so would likewise hinder normal clients."

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

Representatives for did not instantly react to an ask for comment.

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