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OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual residential or commercial property and contract law.
- OpenAI's terms of usage may apply but are mostly 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 actually bombarded OpenAI's chatbots with questions and hoovered up the resulting information trove to quickly and inexpensively train a design 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, morphomics.science told Business Insider and annunciogratis.net other outlets that it's examining whether "DeepSeek may have wrongly distilled our designs."

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

But could it? Could it take legal action against DeepSeek on "you stole our content" grounds, much like the grounds 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 concern to professionals in innovation law, who stated challenging 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 showing a copyright or copyright claim, these attorneys stated.

"The concern is whether ChatGPT outputs" - implying the responses it produces in reaction to queries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

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

"There's a substantial question in copyright law today about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily vulnerable truths," he added.

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

That's not likely, the attorneys 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 security.

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

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

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

"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 most likely

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

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

"So possibly that's the claim you might possibly 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 contract."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service require that many claims be resolved through arbitration, fraternityofshadows.com not claims. There's an exception for claims "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

There's a bigger hitch, however, experts stated.

"You need to know that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander stated. He was describing a January 10 paper, "The Mirage of Expert System Regards To Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Infotech Policy.

To date, "no model developer has really tried to implement these terms with financial charges or injunctive relief," the paper states.

"This is most likely for great reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part because design outputs "are mostly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal restricted option," it says.

"I believe they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts normally won't enforce contracts not to contend in the absence of an IP right that would avoid that competitors."

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

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 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 very complicated location of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have utilized technical procedures to block repeated access to their site," Lemley said. "But doing so would likewise hinder regular customers."

He added: "I do not think they could, or should, have a legitimate legal claim against the browsing of uncopyrightable details from a public website."

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

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