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

In a flurry of press statements, engel-und-waisen.de they said the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting information trove to quickly and cheaply train a design that's now almost as excellent.

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

OpenAI is not saying whether the business plans to pursue legal action, instead guaranteeing what a representative described "aggressive, proactive countermeasures to secure our technology."

But could it? Could it sue DeepSeek on "you took our material" grounds, similar to the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI presented this concern to professionals in innovation 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 difficult time proving a copyright or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - meaning the responses it creates in reaction to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

"There's a doctrine that says imaginative expression is copyrightable, however facts and ideas are not," Kortz, yewiki.org who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a huge concern in copyright law today about whether the outputs of a generative AI can ever make up creative expression or if they are always vulnerable facts," he added.

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

That's not likely, the attorneys stated.

OpenAI is currently on the record in The New york city Times' copyright case arguing that training AI is a permitted "fair usage" exception to copyright defense.

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 simply stating that training is reasonable usage?'"

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

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

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

A breach-of-contract claim is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it comes with its own set of issues, stated 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 utilizing their content as training fodder for a competing AI model.

"So possibly 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,' but that you benefited from my design to do something that you were not allowed to do under our agreement."

There might be a drawback, Chander and Kortz stated. OpenAI's terms of service need that most claims be resolved through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

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

"You should know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. He was referring to 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 design developer has in fact tried to implement these terms with financial charges or injunctive relief," the paper says.

"This is likely for good reason: we think that the legal enforceability of these licenses is questionable," it includes. That's in part since model outputs "are largely not copyrightable" and due to the fact that laws like the Copyright Act and the Computer Fraud and Abuse Act "deal restricted recourse," it states.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically will not enforce agreements not to complete in the absence of an IP right that would prevent that competition."

Lawsuits between parties in different nations, each with its own legal and enforcement systems, are constantly challenging, Kortz stated.

Even if OpenAI cleared all the above obstacles and prazskypantheon.cz 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 come down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another exceptionally complicated area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and nationwide sovereignty - that stretches back to before the founding of the US.

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

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

"They might have used technical procedures to obstruct repetitive access to their website," Lemley stated. "But doing so would also interfere with regular customers."

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

Representatives for DeepSeek did not immediately react to a demand for comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's understood as distillation, to attempt to duplicate innovative U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.