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OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's regards to usage may apply but are mainly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to rapidly and inexpensively train a design that's now practically as excellent.

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

OpenAI is not saying whether the business plans to pursue legal action, instead guaranteeing what a spokesperson called "aggressive, proactive countermeasures to protect our innovation."

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

BI positioned this concern to professionals in technology law, who stated 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 tough time showing a copyright or copyright claim, these legal representatives stated.

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

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

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

"There's a substantial question in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever make up innovative expression or if they are always vulnerable facts," he added.

Could OpenAI roll those dice anyhow and claim that its outputs are protected?

That's not likely, the lawyers said.

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

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

There might be a distinction between the Times and DeepSeek cases, Kortz included.

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

"But this still puts OpenAI in a quite predicament with regard to the line it's been toeing concerning reasonable use," he included.

A breach-of-contract lawsuit is more likely

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

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

"So maybe 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 took advantage of my design to do something that you were not allowed to do under our agreement."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service require that many claims be resolved through arbitration, not lawsuits. There's an exception for claims "to stop unapproved use or abuse of the Services or copyright violation or misappropriation."

There's a bigger hitch, though, specialists stated.

"You need to know 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 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 model developer has actually attempted to impose these terms with financial penalties or injunctive relief," the paper says.

"This is likely for great reason: we believe that the legal enforceability of these licenses is doubtful," it includes. That remains in part because design outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal recourse," it says.

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

Lawsuits in between celebrations in various nations, each with its own legal and enforcement systems, are constantly tricky, Kortz said.

Even if OpenAI cleared all the above difficulties and wiki.lafabriquedelalogistique.fr 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 boil down to the Chinese legal system," he said.

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

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

Could OpenAI have protected itself better from a distilling incursion?

"They could have utilized technical measures to block repetitive access to their website," Lemley said. "But doing so would likewise interfere with typical customers."

He added: "I don't think they could, or should, have a valid legal claim versus the browsing of uncopyrightable details from a public website."

Representatives for DeepSeek did not immediately react to an ask for comment.

"We understand that groups in the PRC are actively working to use approaches, including what's known as distillation, to attempt to replicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed statement.