OpenAI and the White House have actually 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 terms of use might apply however are largely unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something akin 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 information trove to rapidly and inexpensively train a model that’s now practically as excellent.

The Trump administration’s leading AI czar stated this training process, called “distilling,” amounted to intellectual property theft. OpenAI, on the other hand, informed Business Insider and visualchemy.gallery other outlets that it’s examining whether “DeepSeek may have wrongly distilled our models.”

OpenAI is not saying whether the company prepares to pursue legal action, rather promising what a spokesperson described “aggressive, proactive countermeasures to safeguard our technology.”

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

BI positioned this concern to professionals in technology law, who stated challenging DeepSeek in the courts would be an uphill fight for clashofcryptos.trade OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a tough time showing an intellectual home or copyright claim, these attorneys stated.

“The concern is whether ChatGPT outputs” - indicating the answers it produces in response to queries - “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 teaching that states creative expression is copyrightable, however truths and ideas are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, said.

“There’s a big question in intellectual home law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are always unguarded facts,” he added.

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

That’s not likely, the lawyers stated.

OpenAI is currently on the record in The New york city Times’ copyright case arguing that training AI is an allowed “fair use” exception to copyright protection.

If they do a 180 and tell DeepSeek that training is not a fair usage, “that might come back to type of bite them,” Kortz stated. “DeepSeek could say, ‘Hey, weren’t you simply saying that training is fair usage?’”

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

“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 done, Kortz stated.

“But this still puts OpenAI in a quite tricky situation with regard to the line it’s been toeing concerning reasonable use,” he added.

A breach-of-contract suit is most likely

A breach-of-contract suit is much likelier than an IP-based claim, iwatex.com 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 design.

“So possibly that’s the lawsuit you may potentially 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 design to do something that you were not enabled to do under our contract.”

There may be a drawback, Chander and Kortz stated. OpenAI’s terms of service need that the majority of claims be resolved through arbitration, not claims. There’s an exception for claims “to stop unapproved use or abuse of the Services or intellectual property infringement or misappropriation.”

There’s a larger hitch, though, specialists said.

“You need to 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 Terms of Use Restrictions,” by Stanford Law’s Mark A. Lemley and Peter Henderson of Princeton University’s Center for Information Technology Policy.

To date, “no model developer has actually tried to enforce these terms with monetary charges or injunctive relief,” the paper says.

“This is likely for good reason: we believe that the legal enforceability of these licenses is questionable,” it includes. That’s in part since model outputs “are largely not copyrightable” and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act “offer restricted recourse,” it says.

“I believe they are most likely unenforceable,” Lemley informed BI of OpenAI’s terms of service, “since DeepSeek didn’t take anything copyrighted by OpenAI and because courts typically will not implement agreements not to contend in the absence of an IP right that would avoid that competition.”

Lawsuits in between parties in various countries, each with its own legal and enforcement systems, are constantly difficult, 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 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 grace of another incredibly complex location of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that stretches back to before the starting of the US.

“So this is, a long, made complex, fraught process,” Kortz added.

Could OpenAI have secured itself better from a distilling attack?

“They could have used technical procedures to block repetitive access to their site,” Lemley stated. “But doing so would likewise hinder normal clients.”

He included: “I do not believe they could, or should, have a valid legal claim versus the browsing of uncopyrightable information from a public website.”

for DeepSeek did not right away react to a request for comment.

“We understand that groups in the PRC are actively working to use approaches, including what’s referred to as distillation, to attempt to duplicate innovative U.S. AI models,” Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.