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

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

The Trump administration's leading AI czar stated this training procedure, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not saying whether the business plans to pursue legal action, instead guaranteeing what a representative described "aggressive, proactive countermeasures to secure our innovation."

But could it? Could it sue DeepSeek on "you stole our material" grounds, much like the premises OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI postured this question to professionals 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 difficult time showing a copyright or copyright claim, these lawyers said.

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

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

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

"There's a substantial concern in copyright law today about whether the outputs of a generative AI can ever constitute innovative expression or if they are necessarily vulnerable truths," he included.

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

That's not likely, the .

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 protection.

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

There may be a difference in between the Times and DeepSeek cases, Kortz added.

"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 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 included.

A breach-of-contract claim is most likely

A breach-of-contract lawsuit is much likelier than an IP-based claim, though it features 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 competing AI model.

"So possibly that's the claim you might potentially 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 may be a drawback, Chander and Kortz stated. OpenAI's regards to service require that many claims be dealt with through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright violation or misappropriation."

There's a bigger drawback, asteroidsathome.net however, experts said.

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander said. He was describing a January 10 paper, "The Mirage of Artificial Intelligence 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 attempted to enforce these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for good reason: we think that the legal enforceability of these licenses is questionable," it adds. That's in part due to the fact that model outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it says.

"I believe 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 usually won't enforce agreements not to contend in the lack of an IP right that would prevent that competitors."

Lawsuits in between celebrations in various nations, each with its own legal and enforcement systems, are always tricky, Kortz said.

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

Here, OpenAI would be at the grace of another extremely complex location of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that extends back to before the starting of the US.

"So this is, a long, complicated, fraught process," Kortz included.

Could OpenAI have safeguarded itself much better from a distilling attack?

"They could have used technical measures to obstruct repetitive access to their website," Lemley stated. "But doing so would also interfere with typical consumers."

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

Representatives for DeepSeek did not immediately react to a demand 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 reproduce advanced U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.