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OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI's regards to usage might use but are mainly unenforceable, they say.
Today, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, they said the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to quickly and inexpensively train a model that's now almost as great.

The Trump administration's leading AI czar said this training process, called "distilling," amounted to copyright theft. OpenAI, on the other hand, akropolistravel.com told Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our designs."

OpenAI is not saying whether the company prepares to pursue legal action, rather guaranteeing what a representative called "aggressive, proactive countermeasures to secure our innovation."

But could it? Could it take legal action against DeepSeek on "you stole our material" premises, much like the grounds OpenAI was itself took legal action against on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI postured this concern to professionals in innovation law, who stated difficult 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 question is whether ChatGPT outputs" - suggesting the responses it generates 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 "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, said.

"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 creative expression or if they are necessarily unguarded facts," he included.

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

That's unlikely, the legal representatives stated.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is a permitted "fair 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 say, 'Hey, weren't you simply saying that training is reasonable use?'"

There may be a difference 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 model into another design," as DeepSeek is said to have actually done, Kortz stated.

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

A breach-of-contract claim is more most likely

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

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The terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as training fodder for a contending AI model.

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

"Not, 'You copied something from me,' but that you gained from my model to do something that you were not enabled to do under our agreement."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service need that the majority of claims be fixed through arbitration, not suits. There's an exception for suits "to stop unapproved usage or abuse of the Services or copyright violation or misappropriation."

There's a larger drawback, though, specialists stated.

"You need to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander said. He was describing 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 creator has really attempted to impose these terms with financial penalties or injunctive relief," the paper states.

"This is likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part since model outputs "are mostly 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 informed BI of OpenAI's terms of service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts usually won't enforce arrangements not to compete in the absence of an IP right that would avoid that competition."

Lawsuits between parties in various countries, each with its own legal and enforcement systems, are always difficult, kenpoguy.com Kortz stated.

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 money or stop doing what it's doing, the enforcement would come down to the Chinese legal system," he stated.

Here, OpenAI would be at the mercy of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and - that stretches back to before the founding of the US.

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

Could OpenAI have safeguarded itself better from a distilling attack?

"They could have used technical measures to block repeated access to their site," Lemley stated. "But doing so would likewise disrupt normal consumers."

He included: "I don't think they could, or should, have a legitimate legal claim versus the searching of uncopyrightable details from a public site."

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

"We understand that groups in the PRC are actively working to utilize approaches, including what's known as distillation, to attempt to reproduce advanced U.S. AI models," Rhianna Donaldson, fakenews.win an OpenAI spokesperson, informed BI in an emailed statement.