OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's terms of usage may apply however are largely unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, 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 model that's now almost as great.

The Trump administration's top AI czar said this training process, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, on the other hand, told Business Insider and asteroidsathome.net other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our designs."

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

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

BI presented this question to experts in innovation law, who stated tough DeepSeek in the courts would be an uphill struggle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing a copyright or copyright claim, these attorneys said.

"The question is whether ChatGPT outputs" - meaning the answers it produces in action to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's due to the fact that it's unclear whether the answers ChatGPT spits out qualify as "imagination," he said.

"There's a teaching that states innovative expression is copyrightable, however facts and concepts are not," Kortz, classifieds.ocala-news.com who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a big concern in intellectual home law right now about whether the outputs of a generative AI can ever make up creative expression or if they are always unprotected truths," he added.

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

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 a permitted "reasonable use" exception to copyright defense.

If they do a 180 and inform DeepSeek that training is not a reasonable usage, "that may return to kind of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you simply saying that training is fair use?'"

There may be a distinction between the Times and DeepSeek cases, akropolistravel.com Kortz added.

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

"But this still puts OpenAI in a pretty predicament with regard to the line it's been toeing regarding fair usage," he added.

A breach-of-contract lawsuit is most likely

A breach-of-contract claim 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.

Related stories

The terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing 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 benefited from my model to do something that you were not enabled to do under our contract."

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

There's a bigger hitch, however, specialists said.

"You ought to know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Artificial Intelligence 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 model developer has in fact tried to implement these terms with financial charges or injunctive relief," the paper says.

"This is most likely for good reason: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part because model outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited recourse," it states.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of 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 absence of an IP right that would avoid that competition."

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

Even if OpenAI cleared all the above hurdles and won a from a United States 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 grace of another extremely complicated 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 founding of the US.

"So this is, a long, complicated, filled procedure," Kortz included.

Could OpenAI have safeguarded itself better from a distilling attack?

"They could have utilized technical procedures to block repetitive access to their website," Lemley said. "But doing so would likewise disrupt regular consumers."

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

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

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