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OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI's terms of use might use but are largely unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something similar 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 design that's now almost as good.

The Trump administration's leading AI czar said this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our designs."

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

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

BI posed this concern to experts in innovation law, who stated 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 an intellectual residential or commercial property or copyright claim, these attorneys stated.

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

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

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

"There's a big question in intellectual home law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unguarded realities," he added.

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

That's not likely, the legal representatives stated.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is a permitted "reasonable usage" exception to copyright security.

If they do a 180 and tell DeepSeek that training is not a reasonable usage, "that might return to kind of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you simply 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 posts into a design" - 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 done, Kortz said.

"But this still puts OpenAI in a pretty tricky scenario with regard to the line it's been toeing relating to fair use," he included.

A breach-of-contract lawsuit is most likely

A breach-of-contract claim is much likelier than an IP-based lawsuit, though it includes its own set of issues, said 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 a competing AI design.

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

"Not, 'You copied something from me,' however 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 require that many claims be solved through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual property violation or misappropriation."

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

"You ought to know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of 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 Infotech Policy.

To date, "no design developer has actually tried to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for good reason: we think that the legal enforceability of these licenses is questionable," it adds. That remains in part since design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," it states.

"I think they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts usually won't impose contracts not to compete in the lack of an IP right that would prevent that competitors."

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, utahsyardsale.com are always difficult, Kortz said.

Even if OpenAI cleared all the above hurdles and won a judgment from a United States court or 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 said.

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

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

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

"They might have used technical procedures to obstruct repeated access to their site," Lemley stated. "But doing so would also hinder normal clients."

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

Representatives for DeepSeek did not to a demand for comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's referred to as distillation, to try to duplicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.