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OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual residential or commercial property and agreement law.
- OpenAI's terms of usage may use but are mainly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press declarations, they stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to rapidly and inexpensively train a model that's now practically as good.

The Trump administration's top AI czar stated this training procedure, called "distilling," totaled up to intellectual home theft. OpenAI, meanwhile, wiki.rrtn.org 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 prepares to pursue legal action, instead guaranteeing what a representative termed "aggressive, proactive countermeasures to secure our technology."

But could it? Could it sue DeepSeek on "you took our material" grounds, just 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 positioned this concern to experts 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 an intellectual property or copyright claim, these attorneys said.

"The question is whether ChatGPT outputs" - meaning the answers it creates in reaction to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's due to the fact that it's unclear whether the responses ChatGPT spits out certify as "creativity," he said.

"There's a teaching that states imaginative expression is copyrightable, however realities and concepts are not," Kortz, gratisafhalen.be who teaches at Harvard's Cyberlaw Clinic, said.

"There's a substantial question in intellectual property law right now about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily unguarded facts," he included.

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

That's unlikely, the legal representatives said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is a permitted "reasonable usage" exception to copyright protection.

If they do a 180 and tell DeepSeek that training is not a fair usage, "that may come back to sort of bite them," Kortz stated. "DeepSeek could say, 'Hey, weren't you simply stating that training is fair usage?'"

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

"Maybe it's more transformative to turn news short articles into a design" - 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 relating to fair usage," he included.

A breach-of-contract suit is more most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with 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 design.

"So maybe 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 gained from my model to do something that you were not permitted to do under our contract."

There may be a drawback, Chander and Kortz said. 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 unauthorized use or abuse of the Services or copyright infringement or misappropriation."

There's a larger drawback, however, professionals said.

"You should know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander said. He was describing 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 .

To date, "no model creator has in fact attempted to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is likely for good reason: we believe that the legal enforceability of these licenses is questionable," it adds. That remains in part due to the fact that design outputs "are mostly not copyrightable" and because laws like the Digital Millennium Copyright Act and bphomesteading.com the Computer Fraud and Abuse Act "offer restricted option," it says.

"I think they are likely unenforceable," Lemley told BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not impose arrangements not to contend in the absence of an IP right that would prevent that competitors."

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

Even if OpenAI cleared all the above hurdles 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 come down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another extremely complex area of law - the enforcement of foreign judgments and the balancing of specific and business rights and national sovereignty - that stretches back to before the founding of the US.

"So this is, a long, complicated, laden process," Kortz added.

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have utilized technical steps to block repeated access to their website," Lemley said. "But doing so would likewise disrupt normal consumers."

He added: "I do not believe they could, or should, have a valid legal claim against the searching of uncopyrightable details from a public site."

Representatives for DeepSeek did not right away react to a demand for remark.

"We understand that groups in the PRC are actively working to use methods, including what's referred to as distillation, to try to replicate innovative U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.