OpenAI and visualchemy.gallery the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual property and contract law.
- OpenAI’s regards to usage might use but are largely unenforceable, they say.
Today, OpenAI and 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 queries and hoovered up the resulting data trove to rapidly and inexpensively train a design that’s now practically as good.

The Trump administration’s leading AI czar stated this training process, called “distilling,” amounted to copyright theft. OpenAI, on the other hand, told Business Insider and other outlets that it’s investigating whether “DeepSeek might have wrongly distilled our designs.”

OpenAI is not saying whether the company plans to pursue legal action, rather promising what a spokesperson called “aggressive, proactive countermeasures to secure our innovation.”

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

BI posed this concern to specialists in innovation law, who stated tough 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 hard time showing a copyright or championsleage.review copyright claim, these legal representatives said.

“The question is whether ChatGPT outputs” - suggesting the answers it produces in response to inquiries - “are copyrightable at all,” Mason Kortz of Harvard Law School said.

That’s because it’s unclear whether the answers ChatGPT spits out qualify as “imagination,” he stated.

“There’s a teaching that states innovative expression is copyrightable, however truths and concepts are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, said.

“There’s a huge question in intellectual home law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected realities,” he added.

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

That’s unlikely, the attorneys stated.

OpenAI is already on the record in The New york city Times’ copyright case arguing that training AI is a “reasonable usage” exception to copyright protection.

If they do a 180 and tell DeepSeek that training is not a reasonable use, “that might return to sort of bite them,” Kortz stated. “DeepSeek could state, ‘Hey, weren’t you simply stating that training is reasonable usage?’”

There may be a difference 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 done, Kortz stated.

“But this still puts OpenAI in a pretty predicament with regard to the line it’s been toeing concerning reasonable usage,” he added.

A breach-of-contract claim is most likely

A breach-of-contract lawsuit is much likelier than an IP-based lawsuit, though it includes its own set of problems, stated 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 completing AI model.

“So possibly that’s the suit you might possibly bring - a contract-based claim, not an IP-based claim,” Chander said.

“Not, ‘You copied something from me,’ but that you took advantage of my model to do something that you were not allowed to do under our contract.”

There may be a hitch, Chander and Kortz said. OpenAI’s regards to service require that most claims be resolved through arbitration, not claims. There’s an exception for claims “to stop unapproved use or abuse of the Services or copyright infringement or misappropriation.”

There’s a bigger drawback, though, experts said.

“You must understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of 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 design creator has really tried to impose these terms with financial penalties or injunctive relief,” the paper says.

“This is likely for good reason: we believe that the legal enforceability of these licenses is doubtful,” it adds. That remains in part because model outputs “are largely not copyrightable” and since 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 told BI of OpenAI’s regards to service, “because DeepSeek didn’t take anything copyrighted by OpenAI and since courts generally will not enforce contracts not to compete in the lack of an IP right that would prevent that competition.”

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

Even if OpenAI cleared all the above hurdles 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 complex location of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that extends back to before the starting of the US.

“So this is, a long, complicated, laden process,” Kortz included.

Could OpenAI have secured itself better from a distilling attack?

“They might have used technical measures to obstruct repetitive access to their site,” Lemley said. “But doing so would also hinder regular consumers.”

He added: “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 instantly react to an ask for remark.

“We understand that groups in the PRC are actively working to utilize techniques, including what’s called distillation, to try to duplicate advanced U.S. AI designs,” Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.