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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 option under intellectual home and agreement law.
- OpenAI's terms of usage might apply but are mainly unenforceable, photorum.eclat-mauve.fr they say.
This week, OpenAI and the White House implicated DeepSeek of something comparable to theft.

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

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

OpenAI is not saying whether the business prepares to pursue legal action, instead promising what a representative described "aggressive, proactive countermeasures to safeguard our innovation."

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

BI postured this question to professionals in technology law, who stated difficult 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 proving an intellectual residential or photorum.eclat-mauve.fr commercial property or copyright claim, these attorneys stated.

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

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

"There's a teaching that says 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 intellectual property law today about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily unprotected realities," he included.

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

That's not likely, the lawyers said.

OpenAI is currently on the record in The New york city Times' copyright case arguing that training AI is a permitted "fair use" exception to copyright protection.

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

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

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

"But this still puts OpenAI in a quite difficult circumstance with regard to the line it's been toeing concerning fair usage," he added.

A breach-of-contract lawsuit is most likely

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

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The regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as for a competing AI design.

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

"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 agreement."

There may be a hitch, Chander and Kortz said. OpenAI's regards to service require that a lot of claims be resolved through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or copyright infringement or misappropriation."

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

"You must understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are 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 Infotech Policy.

To date, "no model developer has actually tried to enforce these terms with monetary charges or injunctive relief," the paper says.

"This is most likely for excellent reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part since model outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and systemcheck-wiki.de the Computer Fraud and Abuse Act "offer limited recourse," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts normally won't implement contracts not to compete in the lack of an IP right that would prevent that competition."

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

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 boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another extremely complicated area of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that stretches back to before the founding of the US.

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

Could OpenAI have safeguarded itself much better from a distilling attack?

"They might have utilized technical procedures to obstruct repeated access to their site," Lemley said. "But doing so would also interfere with typical customers."

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

Representatives for DeepSeek did not instantly react to an ask 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 duplicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.