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OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI's regards to usage may use but are largely unenforceable, they say.
This week, menwiki.men OpenAI and the White House implicated DeepSeek of something akin to theft.

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

The Trump administration's leading AI czar said this training procedure, called "distilling," totaled up to intellectual property theft. OpenAI, elearnportal.science on the other hand, told Business Insider and other outlets that it's investigating whether "DeepSeek might have wrongly distilled our models."

OpenAI is not stating whether the company plans to pursue legal action, higgledy-piggledy.xyz instead guaranteeing what a representative called "aggressive, proactive countermeasures to protect our technology."

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

BI positioned this question to experts in technology law, who stated challenging 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 tough time showing an intellectual property or copyright claim, these legal representatives said.

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

That's because it's uncertain whether the responses ChatGPT spits out qualify as "imagination," he said.

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

"There's a big concern in intellectual home law today about whether the outputs of a generative AI can ever constitute creative expression or if they are always vulnerable realities," he included.

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

That's not likely, the attorneys said.

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

If they do a 180 and tell DeepSeek that training is not a fair use, "that might come back to kind of bite them," Kortz stated. "DeepSeek could state, 'Hey, weren't you just stating that training is reasonable use?'"

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

"Maybe it's more transformative to turn news 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 said.

"But this still puts OpenAI in a quite difficult situation with regard to the line it's been toeing regarding fair use," he included.

A breach-of-contract lawsuit is more likely

A breach-of-contract claim is much likelier than an IP-based claim, though it features its own set of issues, stated Anupam Chander, bytes-the-dust.com who teaches technology law at Georgetown University.

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

"So perhaps that's the suit you might potentially bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' however that you took advantage of my design to do something that you were not permitted to do under our contract."

There may be a hitch, Chander and Kortz stated. OpenAI's regards to service need that many claims be resolved through arbitration, not suits. There's an exception for claims "to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

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

"You must know that the brilliant scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander said. He was referring to 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 lespoetesbizarres.free.fr Information Technology Policy.

To date, "no model developer has really attempted to implement these terms with financial penalties or injunctive relief," the paper states.

"This is most likely for good reason: we believe that the legal enforceability of these licenses is doubtful," it includes. That's in part because model outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal option," it states.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts typically will not enforce arrangements not to contend in the lack of an IP right that would prevent that competition."

Lawsuits in between parties in various countries, each with its own legal and enforcement systems, are always 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the mercy of another very complicated area of law - the enforcement of foreign judgments and the balancing of specific and business rights and - that extends back to before the starting of the US.

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

Could OpenAI have safeguarded itself better from a distilling incursion?

"They could have utilized technical procedures to block repeated access to their site," Lemley said. "But doing so would also disrupt normal consumers."

He included: "I don't think they could, or should, have a legitimate legal claim against the searching of uncopyrightable information from a public site."

Representatives for DeepSeek did not instantly react to an ask for comment.

"We understand that groups in the PRC are actively working to use techniques, including what's known as distillation, to try to duplicate innovative U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.