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

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

The Trump administration's top AI czar said this training process, called "distilling," up to intellectual residential or commercial property theft. OpenAI, on the other hand, informed Business Insider and accc.rcec.sinica.edu.tw other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not stating whether the company prepares to pursue legal action, instead promising what a spokesperson termed "aggressive, proactive countermeasures to secure our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our material" premises, similar to the grounds OpenAI was itself sued on in a continuous copyright claim filed in 2023 by The New York City 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 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 said.

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

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

"There's a teaching that states creative expression is copyrightable, however realities and ideas are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a substantial question in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected realities," he included.

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

That's not likely, the legal representatives stated.

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

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

There might be a distinction between the Times and DeepSeek cases, Kortz included.

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

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

A breach-of-contract lawsuit is more most likely

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

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

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

"Not, 'You copied something from me,' but that you took advantage of my design to do something that you were not allowed to do under our contract."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service require that many claims be solved through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

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

"You should understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence Regards To 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 impose these terms with monetary charges or injunctive relief," the paper states.

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

"I think they are most 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 typically won't enforce arrangements not to compete in the lack of an IP right that would prevent that competitors."

Lawsuits between parties in different countries, each with its own legal and enforcement systems, are constantly challenging, 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 mercy of another extremely complicated location of law - the enforcement of foreign judgments and the balancing of private and corporate rights and nationwide sovereignty - that stretches back to before the starting of the US.

"So this is, a long, complicated, fraught procedure," Kortz included.

Could OpenAI have secured itself better from a distilling attack?

"They might have used technical measures to block repeated access to their website," Lemley said. "But doing so would likewise hinder regular consumers."

He included: "I do not believe they could, or should, have a valid legal claim versus the browsing of uncopyrightable information from a public site."

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

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