OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under intellectual property and contract law.
- OpenAI's terms of use might use however are largely unenforceable, they say.
Today, OpenAI and the White House implicated DeepSeek of something comparable to theft.

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

The Trump administration's leading AI czar stated this training process, called "distilling," amounted to copyright theft. OpenAI, on the other hand, garagesale.es informed Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our designs."

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

But could it? Could it take legal action against DeepSeek on "you stole our material" premises, just like the premises OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York Times and other news outlets?

BI presented this concern to specialists in technology law, who said challenging 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 lawyers stated.

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

That's since it's uncertain whether the responses ChatGPT spits out qualify as "creativity," he said.

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

"There's a huge question in intellectual home law today about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily unguarded realities," he included.

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

That's unlikely, the attorneys stated.

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

If they do a 180 and inform DeepSeek that training is not a fair usage, "that might return to type of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you simply stating that training is fair use?'"

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

"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 model," as DeepSeek is stated to have done, Kortz said.

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

A breach-of-contract lawsuit is more likely

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

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

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

"Not, 'You copied something from me,' however that you benefited from my design to do something that you were not enabled to do under our agreement."

There may be a hitch, Chander and Kortz said. OpenAI's regards to service require that many claims be fixed through arbitration, not lawsuits. There's an exception for suits "to stop unapproved use or abuse of the Services or intellectual property violation or misappropriation."

There's a bigger drawback, though, specialists said.

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander said. He was describing 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 Policy.

To date, "no model creator has in fact tried to implement these terms with monetary penalties 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 remains in part because design outputs "are mostly not copyrightable" and annunciogratis.net since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited recourse," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and since courts usually won't implement agreements not to contend in the absence of an IP right that would prevent that competitors."

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

Even if OpenAI cleared all the above hurdles and won a judgment from a United States court or arbitrator, "in order to get DeepSeek to turn over money 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 exceptionally complex location of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that stretches back to before the starting of the US.

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

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

"They might have utilized technical steps to block repeated access to their website," Lemley said. "But doing so would likewise disrupt typical consumers."

He included: "I do not believe they could, or should, have a valid legal claim versus the browsing of uncopyrightable information from a public website."

Representatives for asteroidsathome.net DeepSeek did not right away react to an ask for remark.

"We understand that groups in the PRC are actively working to utilize techniques, including what's known as distillation, to attempt to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.