OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.

- Experts in tech law say OpenAI has little option under copyright and agreement law.

- OpenAI's terms of use may use however are largely unenforceable, they say.


Today, OpenAI and akropolistravel.com the White House accused 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 inexpensively train a model that's now almost as excellent.

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

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

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

BI positioned this concern to specialists in technology law, who said 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 tough time proving a copyright or copyright claim, these lawyers said.

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

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

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

"There's a huge concern in intellectual property law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unguarded truths," he added.

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

That's not likely, the legal representatives said.

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

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

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

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

A breach-of-contract suit is more likely

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

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

"So maybe that's the claim 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 might be a hitch, Chander and Kortz stated. OpenAI's terms of service need that most claims be dealt with through arbitration, not claims. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or intellectual home violation or misappropriation."

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

"You should 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 Artificial Intelligence Regards To Use Restrictions," by Stanford Law's Mark A. Lemley and Peter Henderson of Princeton University's Center for Information Technology Policy.

To date, "no design developer has in fact tried to impose these terms with financial charges or injunctive relief," the paper states.

"This is likely for excellent reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part because model outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and passfun.awardspace.us Abuse Act "offer limited option," it says.

"I believe they are likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts typically won't impose contracts not to contend in the absence of an IP right that would avoid that competitors."

Lawsuits in between celebrations in different countries, each with its own legal and enforcement systems, are always 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 boil down to the Chinese legal system," he stated.

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

"So this is, a long, made complex, fraught process," 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 interfere with typical customers."

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

Representatives for DeepSeek did not immediately react to a demand for comment.

"We understand that groups in the PRC are actively working to utilize techniques, including what's called distillation, to attempt to reproduce sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed statement.