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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 copyright and contract law.
- OpenAI's terms of use may apply however are mainly unenforceable, asteroidsathome.net they state.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had chatbots with questions and hoovered up the resulting data trove to quickly and inexpensively 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 home theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our models."

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

But could it? Could it sue DeepSeek on "you took our material" grounds, just like the premises OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York Times and other news outlets?

BI presented this question to experts 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 tough time proving a copyright or classifieds.ocala-news.com copyright claim, these lawyers stated.

"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 because it's unclear whether the responses ChatGPT spits out qualify as "creativity," he stated.

"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 question in intellectual residential or commercial property law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily vulnerable facts," he added.

Could OpenAI roll those dice anyway and photorum.eclat-mauve.fr claim that its outputs are protected?

That's unlikely, the lawyers said.

OpenAI is already on the record in The New York Times' copyright case arguing that training AI is an allowed "fair use" exception to copyright protection.

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

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

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

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

A breach-of-contract lawsuit is more likely

A breach-of-contract claim 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 regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid using their content as training fodder for shiapedia.1god.org a competing AI design.

"So maybe that's the suit you might potentially 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 permitted to do under our agreement."

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

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

"You must understand that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of use are most 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 Infotech Policy.

To date, "no design developer has actually attempted to implement these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for good 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 due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited recourse," it says.

"I think 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 because courts normally will not impose contracts not to contend in the absence of an IP right that would prevent that competitors."

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 difficulties 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 come down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another incredibly complex location of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that extends back to before the starting of the US.

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

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

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

He added: "I don't think they could, or should, have a legitimate legal claim versus the browsing of uncopyrightable info from a public website."

Representatives for DeepSeek did not immediately respond to a request for remark.

"We understand that groups in the PRC are actively working to use approaches, including what's called distillation, to try to reproduce innovative U.S. AI designs," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.