OpenAI and systemcheck-wiki.de the White House have accused DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law say OpenAI has little recourse under intellectual residential or commercial property and contract law.
- OpenAI's terms of use may apply but are mainly unenforceable, they state.
This week, OpenAI and the White House accused DeepSeek of something comparable to theft.

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

The Trump administration's top AI czar said this training process, called "distilling," amounted to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's investigating whether "DeepSeek might have wrongly distilled our designs."

OpenAI is not stating whether the business plans to pursue legal action, rather guaranteeing what a spokesperson called "aggressive, proactive countermeasures to protect our innovation."

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

BI presented this concern to experts in technology 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 lawyers said.

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

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

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

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

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

That's unlikely, the legal representatives stated.

OpenAI is currently on the record in The New york city Times' copyright case arguing that training AI is an allowed "reasonable use" exception to copyright security.

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

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

"Maybe it's more transformative to turn news posts 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 said to have done, Kortz said.

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

A breach-of-contract suit is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it includes its own set of problems, stated Anupam Chander, who teaches innovation 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 content as training fodder for a completing AI design.

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

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

There may be a hitch, Chander and Kortz stated. OpenAI's regards to service require that a lot of claims be fixed through arbitration, kenpoguy.com not suits. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or intellectual home infringement or misappropriation."

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

"You ought to understand that the dazzling 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 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 model developer has actually tried to enforce these terms with financial penalties or injunctive relief," the paper states.

"This is likely for excellent reason: we think that the legal enforceability of these licenses is questionable," it includes. That remains in part due to the fact that model outputs "are largely not copyrightable" and due to the fact that laws like the Copyright Act and the Computer Fraud and Abuse Act "deal minimal option," it says.

"I believe they are most likely unenforceable," Lemley informed BI of OpenAI's regards to service, "because DeepSeek didn't take anything copyrighted by OpenAI and because courts usually won't impose arrangements not to compete in the absence of an IP right that would avoid that competition."

Lawsuits in between parties in various countries, each with its own legal and enforcement systems, are always challenging, Kortz said.

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