OpenAI and the White House have actually accused DeepSeek of using ChatGPT to cheaply train its new chatbot.
in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI's regards to usage may use however are largely unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

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

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 investigating whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not saying whether the company plans to pursue legal action, rather guaranteeing what a representative described "aggressive, proactive countermeasures to secure our technology."

But could it? Could it sue DeepSeek on "you stole our material" grounds, just like 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 presented this question 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 attorneys said.

"The question is whether ChatGPT outputs" - suggesting the responses it generates in response to questions - "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 states creative expression is copyrightable, but facts and concepts are not," Kortz, archmageriseswiki.com who teaches at Harvard's Cyberlaw Clinic, said.

"There's a substantial concern in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily vulnerable truths," he included.

Could OpenAI roll those dice anyway and claim 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 use" exception to copyright defense.

If they do a 180 and inform DeepSeek that training is not a fair usage, "that might come back to kind of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply stating that training is reasonable use?'"

There may 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 implicates OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek is said to have actually done, Kortz said.

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

A breach-of-contract claim is more likely

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

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

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

"Not, 'You copied something from me,' however that you gained from my design to do something that you were not allowed to do under our contract."

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

There's a larger hitch, however, professionals said.

"You should understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander said. 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 model developer has in fact attempted to impose these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for excellent factor: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part since model outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal option," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts usually won't enforce contracts not to contend in the lack of an IP right that would avoid that competition."

Lawsuits in between celebrations in different nations, each with its own legal and enforcement systems, are constantly challenging, 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 come down to the Chinese legal system," he stated.

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

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

Could OpenAI have safeguarded itself better from a distilling attack?

"They might have utilized technical steps to block repetitive access to their website," Lemley said. "But doing so would likewise disrupt normal customers."

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

Representatives for DeepSeek did not right away 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 sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.