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1 OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say

OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and contract law.
- OpenAI's regards to use might apply but are mostly unenforceable, they say.
Today, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, they stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to quickly and cheaply train a model that's now practically as excellent.

The Trump administration's top AI czar said this training procedure, called "distilling," amounted to intellectual property theft. OpenAI, on the other hand, told Business Insider and other outlets that it's examining whether "DeepSeek may have inappropriately distilled our models."

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

But could it? Could it sue DeepSeek on "you stole our content" premises, similar to 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 postured this question to specialists in innovation law, who said challenging DeepSeek in the courts would be an uphill struggle for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a tough time proving a copyright or copyright claim, these attorneys said.

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

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

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

"There's a substantial concern in copyright law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unprotected truths," he included.

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

That's unlikely, the attorneys stated.

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

If they do a 180 and tell DeepSeek that training is not a reasonable use, "that may come back to kind of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply saying that training is reasonable usage?'"

There might be a difference 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 quite predicament with regard to the line it's been toeing concerning 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 features its own set of problems, said Anupam Chander, who teaches innovation 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 contending AI design.

"So perhaps that's the claim you might potentially 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 permitted to do under our agreement."

There might be a drawback, Chander and Kortz said. OpenAI's terms of service need that the majority of claims be resolved through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized use or abuse of the Services or copyright infringement or misappropriation."

There's a larger hitch, macphersonwiki.mywikis.wiki however, specialists said.

"You must know that the fantastic scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," said. He was referring to 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 Infotech Policy.

To date, "no design creator has actually attempted to implement these terms with financial penalties or injunctive relief," the paper states.

"This is likely for great factor: we think that the legal enforceability of these licenses is doubtful," it includes. That's in part due to the fact that design outputs "are mostly not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited option," it says.

"I believe they are most likely unenforceable," Lemley told BI of OpenAI's terms of service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts generally won't impose contracts not to complete in the absence of an IP right that would avoid that competition."

Lawsuits between celebrations in different countries, each with its own legal and enforcement systems, wiki.myamens.com are always 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 incredibly complicated location of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that extends back to before the starting of the US.

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

Could OpenAI have safeguarded itself better from a distilling attack?

"They might have used technical measures to obstruct repetitive access to their site," Lemley stated. "But doing so would also hinder typical clients."

He added: "I do not think they could, or should, have a legitimate legal claim against the searching of uncopyrightable info from a public site."

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

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