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OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual home and agreement law.
- OpenAI's terms of use may use however are mainly unenforceable, they say.
Today, higgledy-piggledy.xyz OpenAI and the White House implicated DeepSeek of something similar to theft.

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

The Trump administration's leading AI czar said this training procedure, called "distilling," totaled up to intellectual property theft. OpenAI, meanwhile, told Business Insider and tandme.co.uk other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our models."

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

But could it? Could it take legal action against DeepSeek on "you took our material" premises, just like the grounds 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 technology law, who stated tough 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 legal representatives stated.

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

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

"There's a doctrine that states 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 copyright law today about whether the outputs of a generative AI can ever constitute creative expression or if they are always unguarded truths," he added.

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

That's unlikely, the attorneys stated.

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

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

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 implicates OpenAI of doing - "than it is to turn outputs of a design into another design," as DeepSeek is stated to have actually done, Kortz said.

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

A breach-of-contract claim is more likely

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

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

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

"Not, 'You copied something from me,' however that you benefited from my model to do something that you were not allowed to do under our agreement."

There may be a drawback, Chander and Kortz stated. OpenAI's terms of service require that many claims be fixed through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or copyright violation or misappropriation."

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

"You should know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Expert System Terms of Use Restrictions," by Mark A. Lemley and Peter Henderson of Princeton University's Center for Information Technology Policy.

To date, "no model creator has in fact attempted to enforce these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is questionable," it includes. That's in part because design outputs "are largely not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted recourse," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts normally won't impose agreements not to compete in the absence of an IP right that would prevent that competition."

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

Even if OpenAI cleared all the above difficulties and won a judgment from an US 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 grace of another exceptionally complex location of law - the enforcement of foreign judgments and the balancing of specific and business rights and national sovereignty - that stretches back to before the founding of the US.

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

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

"They might have utilized technical procedures to block repetitive access to their website," Lemley said. "But doing so would also hinder typical consumers."

He included: "I do not think they could, or should, have a valid legal claim versus the searching of uncopyrightable info from a public website."

Representatives for DeepSeek did not right away react to a request for remark.

"We know that groups in the PRC are actively working to utilize techniques, including what's known as distillation, to attempt to replicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.