OpenAI and the White House have actually accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little option under intellectual property and contract law.
- OpenAI’s regards to use may use however are mostly unenforceable, they say.
This week, asystechnik.com OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, surgiteams.com they stated the Chinese upstart had bombarded OpenAI’s chatbots with queries and hoovered up the resulting information trove to quickly and inexpensively train a design that’s now nearly as great.

The Trump administration’s top AI czar stated this training procedure, called “distilling,” amounted to intellectual residential or commercial property theft. OpenAI, meanwhile, told Business Insider and other outlets that it’s investigating whether “DeepSeek might have inappropriately distilled our designs.”

OpenAI is not saying whether the company prepares to pursue legal action, instead guaranteeing what a representative called “aggressive, proactive countermeasures to secure our technology.”

But could it? Could it take legal action against DeepSeek on “you stole our content” grounds, similar to 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 posed this concern to specialists in innovation law, who said tough 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 attorneys said.

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

That’s due to the fact that it’s unclear whether the answers ChatGPT spits out certify as “imagination,” he said.

“There’s a teaching that says innovative expression is copyrightable, but realities and concepts are not,” Kortz, hb9lc.org who teaches at Harvard’s Cyberlaw Clinic, said.

“There’s a substantial question in copyright law right now about whether the outputs of a generative AI can ever constitute innovative expression or if they are always vulnerable realities,” he included.

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

That’s not likely, sitiosecuador.com the attorneys said.

OpenAI is already on the record in The New York Times’ copyright case arguing that training AI is a permitted “fair use” exception to copyright defense.

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

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

“Maybe it’s more transformative to turn news 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 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 fair usage,” he added.

A breach-of-contract suit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it includes its own set of issues, 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 competing AI model.

“So maybe that’s the claim you may possibly bring - a contract-based claim, not an IP-based claim,” Chander stated.

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

There might be a drawback, Chander and Kortz said. OpenAI’s terms of service need that many claims be solved through arbitration, not lawsuits. There’s an exception for claims “to stop unauthorized usage or abuse of the Services or copyright violation or misappropriation.”

There’s a larger drawback, clashofcryptos.trade however, professionals said.

“You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable,” Chander said. 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 actually attempted to impose these terms with financial penalties or injunctive relief,” the paper states.

“This is most likely for great reason: we believe that the legal enforceability of these licenses is questionable,” it includes. That remains in part because design outputs “are mainly not copyrightable” and because laws like the Copyright Act and the Computer Fraud and Abuse Act “offer minimal option,” it states.

“I think they are most likely unenforceable,” Lemley told BI of OpenAI’s regards to service, “due to the fact that DeepSeek didn’t take anything copyrighted by OpenAI and due to the fact that courts generally will not impose agreements not to compete 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 tricky, Kortz said.

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 boil down to the Chinese legal system,” he stated.

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

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

Could OpenAI have protected itself better from a distilling incursion?

“They could have utilized technical procedures to obstruct repetitive access to their site,” Lemley stated. “But doing so would likewise disrupt regular customers.”

He added: “I do not believe 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 respond to a request for comment.

“We understand that groups in the PRC are actively working to utilize techniques, including what’s understood as distillation, to attempt to reproduce advanced U.S. AI models,” Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.