OpenAI and the White House have actually accused DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's terms of use may use but are mostly unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had OpenAI's chatbots with queries and wolvesbaneuo.com hoovered up the resulting data trove to quickly and inexpensively train a model that's now practically as good.

The Trump administration's leading AI czar stated this training procedure, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

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

But could it? Could it take legal action against DeepSeek on "you stole our material" grounds, much like the grounds OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

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

OpenAI would have a difficult time proving an intellectual property or copyright claim, these legal representatives said.

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

That's due to the fact that it's unclear whether the responses ChatGPT spits out qualify as "creativity," he said.

"There's a doctrine that states imaginative expression is copyrightable, however truths and concepts are not," Kortz, 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 innovative expression or if they are always unguarded truths," he included.

Could OpenAI roll those dice anyhow and claim that its outputs are protected?

That's not likely, 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 defense.

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

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

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

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

A breach-of-contract lawsuit is most likely

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

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The terms of service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid using their material as training fodder for a completing AI design.

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

"Not, 'You copied something from me,' however that you gained from my model to do something that you were not permitted to do under our contract."

There might be a drawback, Chander and Kortz stated. OpenAI's terms of service need that the majority of claims be resolved through arbitration, not lawsuits. There's an exception for suits "to stop unapproved use or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

There's a larger drawback, however, professionals stated.

"You should know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander stated. He was describing 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 design developer has actually tried to enforce these terms with financial charges or injunctive relief," the paper states.

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

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

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

Even if OpenAI cleared all the above difficulties and won a judgment from a United States court or vetlek.ru arbitrator, "in order to get DeepSeek to turn over money or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another very complex area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and nationwide sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have secured itself better from a distilling attack?

"They could have utilized technical procedures to obstruct repeated access to their site," Lemley said. "But doing so would also hinder normal consumers."

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

Representatives for DeepSeek did not instantly respond to an ask for comment.

"We understand that groups in the PRC are actively working to utilize approaches, including what's referred to as distillation, to try to reproduce advanced U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.