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OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual property and contract law.
- OpenAI's terms of usage may use however are mainly unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something akin to theft.

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

The Trump administration's leading AI czar stated this training process, called "distilling," amounted to intellectual property theft. OpenAI, on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our models."

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

But could it? Could it sue DeepSeek on "you took our content" grounds, similar to 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 question to specialists in technology 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 copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - indicating 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 "creativity," he said.

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

"There's a substantial concern in copyright 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 claim that its outputs are secured?

That's not likely, the lawyers stated.

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

If they do a 180 and inform DeepSeek that training is not a reasonable usage, "that might come back to sort of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you just saying that training is reasonable 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 model" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek is said to have done, Kortz stated.

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

A breach-of-contract lawsuit is most likely

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

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The regards to service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid utilizing their content as training fodder for a contending AI design.

"So possibly that's the suit you may possibly 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 terms of service require that many claims be dealt with through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual property infringement or misappropriation."

There's a bigger hitch, however, experts stated.

"You must understand that the dazzling 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 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 developer has really tried to enforce these terms with monetary charges or injunctive relief," the paper states.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part because design outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

"I believe 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 due to the fact that courts generally will not impose agreements not to compete in the lack of an IP right that would prevent that competition."

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

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 stated.

Here, OpenAI would be at the grace of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that stretches back to before the starting of the US.

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

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

"They might have utilized technical measures to block repetitive access to their website," Lemley stated. "But doing so would likewise interfere with normal consumers."

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

Representatives for DeepSeek did not right away react to a request for remark.

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