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OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and .
- OpenAI's terms of usage might apply but are mainly unenforceable, they state.
Today, OpenAI and drapia.org the White House implicated DeepSeek of something comparable to theft.

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

The Trump administration's top AI czar stated this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek may have inappropriately distilled our models."

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

But could it? Could it sue DeepSeek on "you took our material" premises, similar to the grounds OpenAI was itself sued on in a continuous copyright claim submitted in 2023 by The New York Times and other news outlets?

BI positioned this concern 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 hard time showing a copyright or copyright claim, these attorneys said.

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

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

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

"There's a big question in intellectual residential or commercial property law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily vulnerable truths," he added.

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

That's unlikely, the attorneys said.

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

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

There may be a difference in 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 said to have done, Kortz stated.

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

A breach-of-contract lawsuit is more most likely

A breach-of-contract suit is much likelier than an IP-based suit, though it includes its own set of problems, 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 material as training fodder for a competing AI model.

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

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

There may be a hitch, Chander and Kortz said. OpenAI's terms of service require that many claims be fixed through arbitration, not claims. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or copyright violation or misappropriation."

There's a larger hitch, videochatforum.ro though, experts stated.

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of use are likely unenforceable," Chander said. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence 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 design developer has in fact tried to impose these terms with financial penalties or injunctive relief," the paper states.

"This is likely for great reason: we believe that the legal enforceability of these licenses is questionable," it includes. That remains in part because 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 informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts normally will not impose contracts not to complete in the absence of an IP right that would prevent that competitors."

Lawsuits in between celebrations in different countries, each with its own legal and enforcement systems, are constantly difficult, 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 cash or stop doing what it's doing, the enforcement would come down to the Chinese legal system," he stated.

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 corporate rights and nationwide sovereignty - that extends back to before the starting of the US.

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

Could OpenAI have protected itself much better from a distilling incursion?

"They could have used technical procedures to block repetitive access to their site," Lemley stated. "But doing so would likewise hinder typical clients."

He included: "I do not 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 an ask for remark.

"We understand that groups in the PRC are actively working to use approaches, including what's referred to as distillation, to try to replicate advanced U.S. AI models," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.