OpenAI and the White House have actually accused 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 regards to use might use however are largely unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to quickly and a design that's now almost as good.

The Trump administration's top AI czar said this training process, pipewiki.org called "distilling," amounted to intellectual residential or dokuwiki.stream commercial 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 saying whether the company plans to pursue legal action, instead guaranteeing what a spokesperson termed "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it sue DeepSeek on "you took our content" grounds, similar to the premises OpenAI was itself took legal action against on in an ongoing copyright claim filed in 2023 by The New York Times and other news outlets?

BI postured this concern to experts in innovation law, who said difficult 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 lawyers said.

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

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

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

"There's a big concern in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily unguarded truths," he added.

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

That's not likely, the legal representatives said.

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

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

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

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

"But this still puts OpenAI in a quite tricky situation with regard to the line it's been toeing relating to reasonable use," he added.

A breach-of-contract suit is more most likely

A breach-of-contract suit is much likelier than an IP-based claim, though it features its own set of problems, stated 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 material as training fodder for a contending AI model.

"So maybe 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,' but that you took advantage of my model to do something that you were not permitted to do under our contract."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service require that the majority of claims be fixed through arbitration, bphomesteading.com not lawsuits. There's an exception for claims "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

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

"You should understand that the fantastic 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 Expert System 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 design developer has actually attempted to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part due to the fact that model outputs "are mostly not copyrightable" and [smfsimple.com](https://www.smfsimple.com/ultimateportaldemo/index.php?action=profile