OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little option under copyright and contract law.
- OpenAI's terms of use may use but are largely unenforceable, they say.
Today, 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 queries and hoovered up the resulting information trove to rapidly and inexpensively train a model that's now practically as great.

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 investigating whether "DeepSeek might have inappropriately distilled our designs."

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

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

BI postured this concern to experts in innovation law, who said tough 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 hard time showing a copyright or copyright claim, these legal representatives said.

"The concern is whether ChatGPT outputs" - indicating the responses it creates in reaction to inquiries - "are copyrightable at all," Mason Kortz of Harvard Law School said.

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

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

"There's a big question in intellectual property law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily vulnerable facts," he included.

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

That's not likely, the attorneys said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is an allowable "reasonable 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 sort of bite them," Kortz said. "DeepSeek could state, 'Hey, weren't you simply stating that training is reasonable use?'"

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

"Maybe it's more transformative to turn news posts into a model" - 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 quite challenging scenario with regard to the line it's been toeing regarding fair usage," he added.

A breach-of-contract claim is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it comes with 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 utilizing their material as training fodder for a competing AI design.

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

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

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

There's a larger drawback, however, specialists said.

"You need to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to usage are likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Expert System 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 really attempted to implement these terms with monetary 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 remains in part because model outputs "are mostly not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and wiki.dulovic.tech Abuse Act "offer restricted recourse," it says.

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

Lawsuits in between parties in different countries, each with its own legal and enforcement systems, are constantly challenging, 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 money 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 complex area of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that stretches back to before the starting of the US.

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

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

"They might have used technical steps to block repeated access to their website," Lemley said. "But doing so would also interfere with regular customers."

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

Representatives for DeepSeek did not instantly respond to a demand for comment.

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