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 recourse under copyright and contract law.
- OpenAI's terms of use might apply however are largely unenforceable, they say.
Today, oke.zone OpenAI and the White House implicated DeepSeek of something comparable 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 inexpensively train a model that's now nearly as good.

The Trump administration's top AI czar stated this training procedure, called "distilling," amounted to intellectual home theft. OpenAI, suvenir51.ru meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly 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 safeguard our technology."

But could it? Could it sue DeepSeek on "you took our material" grounds, much like the premises OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI posed this question to experts in innovation 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 an intellectual property or copyright claim, these legal representatives said.

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

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

"There's a doctrine that states innovative expression is copyrightable, but realities and concepts are not," Kortz, photorum.eclat-mauve.fr who teaches at Harvard's Cyberlaw Clinic, said.

"There's a huge question in copyright law right now about whether the outputs of a generative AI can ever make up creative expression or if they are always unprotected truths," 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 Times' copyright case arguing that training AI is an allowable "reasonable usage" exception to copyright security.

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

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

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

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

A breach-of-contract claim is more likely

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

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

"So perhaps that's the suit you might 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 model to do something that you were not enabled to do under our contract."

There may be a hitch, Chander and wiki.lafabriquedelalogistique.fr Kortz said. OpenAI's terms of service need that most claims be solved through arbitration, not suits. There's an exception for claims "to stop unauthorized usage or abuse of the Services or copyright violation or misappropriation."

There's a larger drawback, however, experts stated.

"You should know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander stated. 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 Information Technology Policy.

To date, "no model creator has really tried to enforce these terms with monetary charges or injunctive relief," the paper says.

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

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

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

Even if OpenAI cleared all the above obstacles 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another exceptionally complex area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and nationwide sovereignty - that extends back to before the starting of the US.

"So this is, a long, complicated, laden process," Kortz included.

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

"They might have used technical procedures to obstruct repetitive access to their site," Lemley said. "But doing so would likewise hinder regular consumers."

He added: "I do not think they could, or should, have a legitimate legal claim against 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 known as distillation, to try to duplicate advanced U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.