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 intellectual property and agreement law.

- OpenAI's regards to use might apply but are mainly unenforceable, they state.


This week, OpenAI and the White House accused 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 hoovered up the resulting data trove to rapidly and cheaply train a design that's now practically as excellent.

The Trump administration's top AI czar said this training process, called "distilling," totaled up to intellectual property theft. OpenAI, on the other hand, informed Business Insider and other outlets that it's examining whether "DeepSeek might have wrongly distilled our models."

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

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

BI posed this question to experts in innovation law, who stated tough 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 tough time showing an intellectual residential or commercial property or copyright claim, these attorneys stated.

"The question is whether ChatGPT outputs" - suggesting the responses it produces in response to queries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

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

"There's a huge question in copyright law right now about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily vulnerable realities," he included.

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

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 "fair use" exception to copyright protection.

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

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

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

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

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it includes its own set of issues, stated Anupam Chander, who teaches technology law at Georgetown University.

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The regards to 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 suit you might potentially 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 allowed to do under our agreement."

There might be a hitch, Chander and Kortz stated. OpenAI's regards to service require that a lot of claims be fixed through arbitration, not claims. There's an exception for claims "to stop unauthorized usage or abuse of the Services or copyright infringement or misappropriation."

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

"You ought to understand that the brilliant 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 creator has in fact attempted to impose these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That's in part since design 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 says.

"I think they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and since courts generally won't implement agreements not to complete in the lack of an IP right that would prevent that competition."

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

Even if OpenAI cleared all the above hurdles 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 grace of another exceptionally complicated area of law - the enforcement of foreign judgments and clashofcryptos.trade the balancing of specific 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 attack?

"They might have used technical measures to obstruct repeated access to their site," Lemley stated. "But doing so would likewise disrupt normal customers."

He included: "I don't believe they could, or should, have a legitimate legal claim versus the searching of uncopyrightable details from a public site."

Representatives for DeepSeek did not instantly react to a request for remark.

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