OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.

- Experts in tech law say OpenAI has little recourse under intellectual property and agreement law.

- OpenAI's regards to usage might use but are mostly unenforceable, they say.


Today, OpenAI and the White House accused DeepSeek of something similar 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 information trove to rapidly and cheaply train a design that's now almost as great.

The Trump administration's top AI czar said this training process, called "distilling," totaled up to intellectual property theft. OpenAI, on the other hand, told Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not stating whether the company plans to pursue legal action, asteroidsathome.net instead assuring what a spokesperson termed "aggressive, proactive countermeasures to protect our innovation."

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

BI positioned this question to professionals in innovation law, who stated challenging 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 difficult time proving a copyright or copyright claim, these legal representatives said.

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

That's because it's uncertain whether the responses ChatGPT spits out qualify as "imagination," he stated.

"There's a teaching that states innovative expression is copyrightable, but facts and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a big concern in intellectual home law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always vulnerable truths," he included.

Could OpenAI roll those dice anyhow and declare that its outputs are secured?

That's not likely, the attorneys said.

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

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

There might be a distinction 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 implicates OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is stated to have done, Kortz stated.

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

A breach-of-contract claim is most likely

A breach-of-contract suit 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 terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid using their content as training fodder for a completing AI design.

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

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

There might be a drawback, Chander and Kortz said. OpenAI's regards to service require that the majority of claims be resolved through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a bigger drawback, however, professionals said.

"You must know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence Regards To 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 financial penalties or injunctive relief," the paper states.

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

"I think they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts usually will not implement arrangements not to complete in the lack of an IP right that would avoid that competition."

Lawsuits between parties in various countries, each with its own legal and enforcement systems, are always tricky, Kortz stated.

Even if OpenAI cleared all the above hurdles and won a judgment from an US 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 stated.

Here, OpenAI would be at the mercy of another very complex location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that stretches back to before the founding of the US.

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

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

"They might have utilized technical measures to obstruct repeated access to their site," Lemley stated. "But doing so would likewise interfere with normal customers."

He included: "I don't think they could, or should, have a legitimate legal claim against the browsing of uncopyrightable info from a public site."

Representatives for DeepSeek did not instantly respond to an ask for comment.

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