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OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual home and agreement law.
- OpenAI's terms of use may use however are mostly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press statements, photorum.eclat-mauve.fr they stated the Chinese upstart had actually bombarded OpenAI's chatbots with questions and hoovered up the resulting information trove to quickly and inexpensively train a design that's now nearly as excellent.

The Trump administration's leading AI czar said this training process, called "distilling," amounted to intellectual property theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's examining whether "DeepSeek might have inappropriately distilled our designs."

OpenAI is not saying whether the company plans to pursue legal action, rather assuring 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 content" grounds, historydb.date much like the grounds OpenAI was itself took legal action against on in an ongoing copyright claim submitted in 2023 by The New York Times and other news outlets?

BI posed this question to professionals in technology law, who said challenging DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a hard time showing an intellectual home or copyright claim, these lawyers stated.

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

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

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

"There's a substantial question in intellectual property law today about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily vulnerable facts," he added.

Could OpenAI roll those dice anyway and 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 an allowable "fair usage" exception to copyright security.

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

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

"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 design," as DeepSeek is stated to have done, Kortz said.

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

A breach-of-contract suit is more most likely

A breach-of-contract claim is much likelier than an IP-based claim, though it features its own set of problems, 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 using their material as training fodder for a competing AI design.

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

"Not, 'You copied something from me,' but that you took advantage of my design to do something that you were not enabled to do under our contract."

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

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

"You need to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander said. He was describing 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 Information Technology Policy.

To date, "no model developer has actually tried to impose these terms with monetary penalties or injunctive relief," the paper says.

"This is most likely for good reason: we think that the legal enforceability of these licenses is questionable," it adds. That's in part since model outputs "are largely not copyrightable" and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer restricted recourse," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and due to the fact that courts typically will not enforce arrangements not to contend in the lack of an IP right that would avoid that competition."

Lawsuits between parties in different nations, each with its own legal and enforcement systems, are always difficult, 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the mercy of another extremely complex area of law - the enforcement of foreign judgments and the balancing of private and corporate rights and national sovereignty - that extends back to before the starting of the US.

"So this is, a long, made complex, stuffed procedure," Kortz included.

Could OpenAI have safeguarded itself better from a distilling attack?

"They could have utilized technical steps to block repetitive access to their website," Lemley said. "But doing so would also interfere with normal consumers."

He added: "I don't believe they could, or should, have a valid legal claim versus the browsing of uncopyrightable info from a public website."

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

"We understand that groups in the PRC are actively working to utilize approaches, including what's referred to as distillation, to try to duplicate advanced U.S. AI models," Rhianna Donaldson, grandtribunal.org an OpenAI representative, told BI in an emailed statement.