OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and contract law.
- OpenAI's regards to use might apply but are largely unenforceable, they say.
Today, OpenAI and the White House implicated DeepSeek of something comparable to theft.

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

The Trump administration's leading AI czar stated this training process, called "distilling," amounted to intellectual home theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek might have wrongly distilled our designs."

OpenAI is not stating whether the company plans to pursue legal action, rather promising what a representative called "aggressive, proactive countermeasures to protect our innovation."

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

BI posed this question to professionals in technology law, who said challenging DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time showing an intellectual property or copyright claim, these attorneys stated.

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

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

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

"There's a substantial concern in intellectual home law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected facts," he added.

Could OpenAI roll those dice anyway and declare that its outputs are protected?

That's unlikely, the legal representatives said.

OpenAI is currently on the record in The New york city 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 fair usage, "that may come back to type of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you just stating that training is fair usage?'"

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

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

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

A breach-of-contract suit is more most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with its own set of issues, 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 using their material as training fodder for a AI model.

"So perhaps that's the lawsuit you might perhaps 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 stated. OpenAI's regards to service need that the majority of claims be dealt with through arbitration, not lawsuits. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or intellectual home infringement or misappropriation."

There's a larger drawback, though, specialists stated.

"You should understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Expert System 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 actually tried to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for excellent reason: we think that the legal enforceability of these licenses is doubtful," it includes. That remains in part due to the fact that design outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and bahnreise-wiki.de Abuse Act "deal restricted option," it says.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts generally will not implement agreements not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits between parties in various nations, each with its own legal and enforcement systems, are constantly tricky, Kortz said.

Even if OpenAI cleared all the above hurdles and won a judgment from a United States court or arbitrator, "in order to get DeepSeek to turn over cash 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 mercy of another very complicated location of law - the enforcement of foreign judgments and the balancing of private and corporate rights and national sovereignty - that stretches back to before the starting of the US.

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

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

"They might have used technical steps to obstruct repetitive access to their website," Lemley stated. "But doing so would likewise interfere with typical clients."

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

Representatives for DeepSeek did not instantly react to a demand for remark.

"We understand that groups in the PRC are actively working to use techniques, including what's called distillation, to try to reproduce sophisticated U.S. AI models," Rhianna Donaldson, links.gtanet.com.br an OpenAI spokesperson, told BI in an emailed statement.