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 agreement law.
- OpenAI's terms of usage may use but 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 said the Chinese upstart had actually bombarded OpenAI's chatbots with inquiries and hoovered up the resulting information trove to quickly and cheaply train a model that's now practically as excellent.

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

OpenAI is not saying whether the company plans to pursue legal action, rather guaranteeing what a representative termed "aggressive, proactive countermeasures to safeguard our innovation."

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

BI presented this question to specialists in technology law, who stated tough DeepSeek in the courts would be an uphill struggle for OpenAI now that the is on the other foot.

OpenAI would have a difficult time showing a copyright or copyright claim, these legal representatives said.

"The concern is whether ChatGPT outputs" - meaning the responses it produces in response to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

That's due to the fact that it's uncertain whether the answers ChatGPT spits out certify as "imagination," he stated.

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

"There's a substantial concern in copyright law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are always unguarded facts," he added.

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

That's not likely, the lawyers stated.

OpenAI is already 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 fair usage, "that may return to kind of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply stating that training is reasonable usage?'"

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

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

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

A breach-of-contract lawsuit is more most likely

A breach-of-contract claim is much likelier than an IP-based claim, though it comes with 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 competing AI model.

"So possibly that's the claim you may 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 design to do something that you were not enabled to do under our contract."

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

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

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to use 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 really tried to impose these terms with financial penalties or injunctive relief," the paper says.

"This is likely for excellent factor: we think that the legal enforceability of these licenses is doubtful," it includes. 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 Abuse Act "deal limited recourse," it states.

"I think they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts normally won't enforce arrangements not to complete in the absence of an IP right that would avoid that competitors."

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, are constantly 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 grace of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of private and corporate rights and national sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have secured itself better from a distilling incursion?

"They could have used technical procedures to obstruct repeated access to their website," Lemley stated. "But doing so would also disrupt typical customers."

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

Representatives for DeepSeek did not instantly react to an ask for remark.

"We understand that groups in the PRC are actively working to utilize techniques, including what's known as distillation, to try to reproduce advanced U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.