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OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under intellectual home and contract law.
- OpenAI's terms of use may use but are largely unenforceable, they say.
Today, OpenAI and the White DeepSeek of something akin to theft.

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

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

OpenAI is not stating whether the company plans to pursue legal action, rather assuring what a representative termed "aggressive, proactive countermeasures to safeguard our innovation."

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

BI postured this question to experts 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 difficult time showing a copyright or copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - indicating the answers it creates in action to queries - "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 stated.

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

"There's a big concern in copyright law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unguarded facts," he added.

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

That's not likely, the attorneys said.

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

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

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

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

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

A breach-of-contract claim is more likely

A breach-of-contract suit is much likelier than an IP-based claim, though it comes with its own set of problems, 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 contending AI design.

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

"Not, 'You copied something from me,' however 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 stated. OpenAI's terms of service need that a lot of claims be solved through arbitration, not lawsuits. There's an exception for claims "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

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

"You must understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of usage 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 Information Technology Policy.

To date, "no model creator has actually attempted to impose these terms with financial penalties or injunctive relief," the paper states.

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

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically won't impose arrangements not to contend in the lack of an IP right that would avoid that competition."

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

Even if OpenAI cleared all the above obstacles 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, equipifieds.com OpenAI would be at the grace of another exceptionally complex area of law - the enforcement of foreign judgments and the balancing of private and corporate rights and nationwide sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have safeguarded itself better from a distilling incursion?

"They might have utilized technical steps to obstruct repetitive access to their site," Lemley said. "But doing so would likewise disrupt normal clients."

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

Representatives for DeepSeek did not right away react to an ask for remark.

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