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 option under copyright and contract law.
- OpenAI's terms of use may use but are mainly unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something similar to theft.

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

The Trump administration's leading AI czar said this training procedure, called "distilling," amounted to copyright theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

OpenAI is not stating whether the company plans to pursue legal action, instead assuring what a representative called "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 took legal action against on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI postured this concern to professionals in law, who stated 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 tough time proving a copyright or copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - indicating the answers it creates in reaction to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

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

"There's a huge question in intellectual home law today about whether the outputs of a generative AI can ever constitute creative expression or if they are always unprotected truths," he added.

Could OpenAI roll those dice anyway and claim that its outputs are safeguarded?

That's not likely, the attorneys said.

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

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

There may be a difference between the Times and DeepSeek cases, Kortz included.

"Maybe it's more transformative to turn news short articles into a model" - 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 done, Kortz stated.

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

A breach-of-contract claim is most likely

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

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

"So perhaps that's the suit you might possibly bring - a contract-based claim, not an IP-based claim," Chander stated.

"Not, 'You copied something from me,' however that you took advantage of my model to do something that you were not permitted to do under our agreement."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service require that the majority of claims be dealt with through arbitration, classifieds.ocala-news.com not lawsuits. There's an exception for suits "to stop unapproved usage or abuse of the Services or copyright violation or misappropriation."

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

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to 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 Information Technology Policy.

To date, "no model developer has in fact tried to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is likely for great reason: we think that the legal enforceability of these licenses is doubtful," it adds. That remains in part since design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it states.

"I think they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts generally won't enforce contracts not to complete in the absence of an IP right that would prevent that competitors."

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

Even if OpenAI cleared all the above difficulties 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 come 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 private and business rights and nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, complicated, stuffed process," Kortz added.

Could OpenAI have protected itself better from a distilling incursion?

"They could have used technical steps to obstruct repetitive access to their site," Lemley stated. "But doing so would likewise interfere with typical consumers."

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

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

"We understand that groups in the PRC are actively working to utilize methods, including what's referred to as distillation, to try to reproduce innovative U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.