OpenAI and the White House have accused DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.

- Experts in tech law say OpenAI has little recourse under intellectual property and agreement law.

- OpenAI's terms of use may apply but are mostly unenforceable, they state.


This week, OpenAI and the White House implicated DeepSeek of something similar 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 rapidly and inexpensively train a design that's now practically as great.

The Trump administration's top AI czar stated this training procedure, called "distilling," amounted to intellectual property theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's investigating whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not saying whether the business plans to pursue legal action, instead promising what a spokesperson described "aggressive, proactive countermeasures to protect our technology."

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

BI postured this concern to specialists in innovation law, who stated challenging 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 hard time proving an intellectual residential or commercial property or copyright claim, these legal representatives said.

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

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

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

"There's a substantial concern in intellectual home law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are always vulnerable truths," he included.

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

That's unlikely, the attorneys said.

OpenAI is already on the record in The New york city 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 usage, "that may come back to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply saying that training is fair usage?'"

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

"Maybe it's more transformative to turn news short articles into a model" - as the Times implicates OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is stated to have actually done, Kortz stated.

"But this still puts OpenAI in a quite tricky scenario with regard to the line it's been toeing regarding fair usage," he added.

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based claim, though it features 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 developed by OpenAI and Anthropic forbid using their content as training fodder for a completing AI model.

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

"Not, 'You copied something from me,' however that you gained from my model to do something that you were not enabled to do under our agreement."

There may be a drawback, Chander and archmageriseswiki.com Kortz said. OpenAI's terms of service require that the majority of claims be solved through arbitration, not claims. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or copyright infringement or misappropriation."

There's a bigger drawback, cadizpedia.wikanda.es though, professionals stated.

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander stated. 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 Information Technology Policy.

To date, "no model developer has in fact tried to enforce these terms with monetary charges or injunctive relief," the paper states.

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

"I believe they are 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 usually won't enforce contracts not to compete in the lack of an IP right that would avoid that competitors."

Lawsuits between parties in different countries, oke.zone each with its own legal and enforcement systems, are constantly 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 come down to the Chinese legal system," he said.

Here, OpenAI would be at the grace of another exceptionally complex area of law - the enforcement of foreign judgments and the balancing of individual and corporate rights and national sovereignty - that extends back to before the founding of the US.

"So this is, a long, made complex, filled process," Kortz included.

Could OpenAI have secured itself better from a distilling incursion?

"They might have used technical steps to block repeated access to their website," Lemley stated. "But doing so would likewise interfere with typical consumers."

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

Representatives for DeepSeek did not instantly react to a demand for comment.

"We understand that groups in the PRC are actively working to utilize approaches, including what's called distillation, to try to reproduce sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed statement.