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OpenAI and the White House have actually implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual residential or commercial property and contract law.
- OpenAI's terms of use might apply but are mainly unenforceable, they state.
This week, OpenAI and systemcheck-wiki.de the White House implicated DeepSeek of something akin to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with inquiries and up the resulting data trove to quickly and inexpensively train a model that's now almost as great.

The Trump administration's top AI czar said this training procedure, called "distilling," amounted to intellectual property theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our designs."

OpenAI is not stating whether the business plans to pursue legal action, niaskywalk.com rather guaranteeing what a representative described "aggressive, proactive countermeasures to protect our technology."

But could it? Could it sue DeepSeek on "you stole our content" grounds, morphomics.science just like the grounds OpenAI was itself took legal action against on in an ongoing copyright claim submitted in 2023 by The New York Times and other news outlets?

BI presented this question to experts in technology law, who stated difficult 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 an intellectual home or copyright claim, these lawyers said.

"The question is whether ChatGPT outputs" - meaning the answers it produces in response to inquiries - "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 certify as "imagination," he stated.

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

"There's a substantial question in copyright law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unprotected realities," he included.

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

That's not likely, the legal representatives stated.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is an allowed "reasonable use" exception to copyright defense.

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

There may be a distinction in between the Times and DeepSeek cases, Kortz included.

"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 said to have actually done, Kortz said.

"But this still puts OpenAI in a pretty predicament 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 suit, though it features its own set of problems, stated Anupam Chander, forum.pinoo.com.tr who teaches innovation law at Georgetown University.

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The regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as training fodder for a completing AI model.

"So perhaps that's the suit you may perhaps 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 allowed to do under our agreement."

There might be a hitch, Chander and Kortz stated. OpenAI's terms of service require that most claims be resolved through arbitration, not lawsuits. There's an exception for claims "to stop unauthorized use or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

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

"You need to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander stated. 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 design creator has actually attempted to implement these terms with monetary penalties or injunctive relief," the paper says.

"This is likely for excellent reason: we think that the legal enforceability of these licenses is doubtful," it includes. That remains in part because model outputs "are largely not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal limited option," it states.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "due to the fact that DeepSeek didn't take anything copyrighted by OpenAI and because courts normally will not implement arrangements not to complete in the lack of an IP right that would avoid that competitors."

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

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 location of law - the enforcement of foreign judgments and the balancing of private and business rights and nationwide sovereignty - that stretches back to before the starting of the US.

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

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

"They could have used technical procedures to obstruct repeated access to their website," Lemley stated. "But doing so would likewise interfere with regular clients."

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

Representatives for DeepSeek did not immediately respond to an ask for remark.

"We understand that groups in the PRC are actively working to use approaches, including what's understood as distillation, to attempt to reproduce advanced U.S. AI designs," Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.