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OpenAI and the White House have accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under intellectual property and agreement law.
- OpenAI's regards to use might apply however are mostly unenforceable, they say.
Today, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to rapidly and cheaply train a design that's now almost as excellent.

The Trump administration's leading AI czar said this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, complexityzoo.net told Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our models."

OpenAI is not stating whether the company prepares to pursue legal action, instead promising what a spokesperson described "aggressive, proactive countermeasures to safeguard our technology."

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

BI presented this concern to professionals in innovation law, who said tough DeepSeek in the courts would be an uphill battle for oke.zone OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a tough time proving an or commercial property or copyright claim, these lawyers stated.

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

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

"There's a teaching that says innovative expression is copyrightable, but realities and concepts are not," Kortz, oke.zone who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a big concern in copyright law today about whether the outputs of a generative AI can ever make up creative expression or if they are always unprotected truths," he added.

Could OpenAI roll those dice anyhow and akropolistravel.com claim that its outputs are secured?

That's not likely, the lawyers said.

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

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

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

"Maybe it's more transformative to turn news posts into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a design into another design," as DeepSeek is stated to have done, parentingliteracy.com Kortz said.

"But this still puts OpenAI in a pretty challenging scenario 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 suit is much likelier than an IP-based lawsuit, mediawiki.hcah.in though it comes with its own set of problems, stated Anupam Chander, who teaches technology law at Georgetown University.

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The terms of service for wiki.vst.hs-furtwangen.de Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their content as training fodder for a competing AI design.

"So perhaps that's the suit you may possibly bring - a contract-based claim, not an IP-based claim," Chander stated.

"Not, 'You copied something from me,' however that you gained from my design to do something that you were not allowed to do under our contract."

There may be a drawback, Chander and Kortz stated. OpenAI's terms of service require that many claims be dealt with through arbitration, not suits. There's an exception for claims "to stop unapproved use or abuse of the Services or copyright violation or misappropriation."

There's a larger hitch, however, experts stated.

"You must understand that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most 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 Information Technology Policy.

To date, "no design developer has really attempted to impose these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for great reason: we believe that the legal enforceability of these licenses is questionable," it includes. That remains in part since design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," it states.

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

Lawsuits in between parties in different 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 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 mercy of another incredibly complex location of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that extends back to before the starting of the US.

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

Could OpenAI have protected itself better from a distilling incursion?

"They could have used technical steps to obstruct repeated access to their website," Lemley said. "But doing so would also disrupt regular consumers."

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

Representatives for DeepSeek did not right away react to an ask for remark.

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