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OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little option under intellectual property and contract law.
- OpenAI's regards to usage may apply but are mostly unenforceable, they state.
Today, OpenAI and the White House accused DeepSeek of something comparable to theft.

In a flurry of press declarations, 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 practically as good.

The Trump administration's leading AI czar said this training procedure, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, on the other hand, told Business Insider and other outlets that it's examining whether "DeepSeek might have wrongly distilled our models."

OpenAI is not stating whether the business plans to pursue legal action, rather promising what a spokesperson described "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it sue DeepSeek on "you stole our material" grounds, similar to the premises 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 challenging 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 proving a copyright or pittsburghpenguinsclub.com copyright claim, these lawyers said.

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

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

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

"There's a big question in copyright law today about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily vulnerable realities," he added.

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

That's unlikely, the attorneys said.

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

If they do a 180 and tell DeepSeek that training is not a fair usage, "that might come back to sort of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you just stating that training is fair usage?'"

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

"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 predicament with regard to the line it's been toeing regarding fair usage," he included.

A breach-of-contract suit is more most likely

A breach-of-contract lawsuit is much likelier than an IP-based lawsuit, though it includes its own set of issues, stated Anupam Chander, 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 material as training fodder for a contending AI model.

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

"Not, 'You copied something from me,' however that you took advantage of my model to do something that you were not allowed to do under our contract."

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

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

"You should understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable," Chander stated. He was referring to 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 Infotech Policy.

To date, "no design creator has really tried to impose these terms with monetary penalties or injunctive relief," the paper says.

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

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not impose agreements not to compete in the absence of an IP right that would avoid that competitors."

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

Even if OpenAI cleared all the above difficulties 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 mercy of another very complex area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have secured itself better from a distilling attack?

"They might have utilized technical measures to block repeated access to their site," Lemley said. "But doing so would also disrupt typical customers."

He added: "I do not think they could, or should, have a legitimate legal claim against the searching of uncopyrightable info from a public site."

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

"We understand that groups in the PRC are actively working to use methods, including what's called distillation, to try to reproduce sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.