OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and contract law.
- OpenAI's terms of use may use however are mostly unenforceable, they say.
Today, OpenAI and the White House implicated DeepSeek of something comparable to theft.

In a flurry of press statements, they said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting data trove to rapidly and cheaply train a model that's now practically as good.

The Trump administration's leading AI czar said this training process, dokuwiki.stream called "distilling," up to intellectual home theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek may have wrongly distilled our designs."

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

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

BI positioned this concern to specialists in technology law, who said challenging DeepSeek in the courts would be an uphill battle 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 attorneys said.

"The concern is whether ChatGPT outputs" - indicating the answers it creates in reaction to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

That's since it's uncertain whether the answers ChatGPT spits out certify as "creativity," he said.

"There's a doctrine that states creative expression is copyrightable, but truths and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a huge concern in intellectual property law today about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unprotected realities," he added.

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

That's not likely, the lawyers said.

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

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

There might be a difference 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 stated to have actually done, Kortz said.

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

A breach-of-contract lawsuit is most likely

A breach-of-contract claim is much likelier than an IP-based lawsuit, though it includes its own set of issues, said Anupam Chander, who teaches technology 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 contending AI model.

"So perhaps that's the lawsuit you might perhaps 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 enabled to do under our agreement."

There may be a drawback, Chander and Kortz stated. OpenAI's terms of service need that a lot of claims be fixed through arbitration, not lawsuits. There's an exception for claims "to stop unapproved usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation."

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

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to use are likely unenforceable," Chander said. He was describing 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 Infotech Policy.

To date, "no model creator has actually tried to implement these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for excellent factor: we believe that the legal enforceability of these licenses is questionable," it adds. That's in part since model outputs "are mainly not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and higgledy-piggledy.xyz Abuse Act "offer minimal recourse," it states.

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

Lawsuits in between parties in different nations, each with its own legal and enforcement systems, are constantly tricky, Kortz stated.

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

"So this is, a long, complicated, laden process," Kortz added.

Could OpenAI have secured itself better from a distilling incursion?

"They might have utilized technical measures to obstruct repetitive access to their site," Lemley said. "But doing so would also disrupt normal clients."

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

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

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