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 recourse under intellectual property and agreement law.
- OpenAI's regards to use may use however 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 stated the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to quickly and cheaply train a model that's now almost as excellent.

The Trump administration's top AI czar stated this training procedure, called "distilling," amounted to intellectual residential or commercial property theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our designs."

OpenAI is not stating whether the business prepares to pursue legal action, instead promising what a spokesperson described "aggressive, proactive countermeasures to protect our technology."

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

BI postured this question to experts in technology law, who stated difficult 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 difficult time showing a copyright or copyright claim, these lawyers said.

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

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

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

"There's a huge concern in intellectual home law right now about whether the outputs of a generative AI can ever make up creative expression or if they are always unprotected realities," he added.

Could OpenAI roll those dice anyhow and claim that its outputs are secured?

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 use" exception to copyright security.

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

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

"Maybe it's more transformative to turn news articles into a model" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a model into another design," 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 relating to reasonable use," he included.

A breach-of-contract claim is most likely

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

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

"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 model to do something that you were not allowed to do under our agreement."

There might be a hitch, and Kortz said. OpenAI's terms of service need that the majority of claims be fixed through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or intellectual home violation or misappropriation."

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

"You need to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to 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 model developer has really tried to impose these terms with monetary charges or injunctive relief," the paper says.

"This is likely for great reason: we think that the legal enforceability of these licenses is doubtful," it adds. That's in part since model outputs "are mainly not copyrightable" and systemcheck-wiki.de because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer minimal option," it says.

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

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

Even if OpenAI cleared all the above obstacles and won a judgment from an US court or arbitrator, "in order to get DeepSeek to turn over cash 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 very complex area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that stretches back to before the starting of the US.

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

Could OpenAI have secured itself better from a distilling attack?

"They might have utilized technical measures to obstruct repetitive access to their site," Lemley said. "But doing so would also hinder regular customers."

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

Representatives for DeepSeek did not instantly react to a request for remark.

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