OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI's regards to usage might apply but are mostly unenforceable, they say.
This week, OpenAI and the White House accused DeepSeek of something similar to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with questions and hoovered up the resulting data trove to quickly and cheaply train a design that's now almost as great.

The Trump administration's top AI czar stated this training process, called "distilling," totaled up to intellectual property theft. OpenAI, forum.altaycoins.com meanwhile, informed Business Insider and grandtribunal.org 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, rather assuring what a spokesperson called "aggressive, proactive countermeasures to protect our technology."

But could it? Could it sue DeepSeek on "you stole our content" grounds, much like the premises 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 presented this concern to experts in innovation 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 tough time proving an intellectual residential or commercial property or copyright claim, these legal representatives said.

"The concern is whether ChatGPT outputs" - indicating the answers it creates in response to questions - "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 "creativity," he said.

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

"There's a substantial question in intellectual home law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are necessarily unguarded truths," he included.

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

That's unlikely, the legal representatives said.

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

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

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 implicates OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is stated to have actually done, Kortz stated.

"But this still puts OpenAI in a pretty predicament with regard to the line it's been toeing relating to fair use," he added.

A breach-of-contract lawsuit is most likely

A breach-of-contract claim is much likelier than an IP-based suit, though it comes with its own set of issues, 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 utilizing their material as training fodder for a competing AI model.

"So maybe that's the suit 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 model to do something that you were not allowed to do under our agreement."

There may be a drawback, Chander and Kortz said. OpenAI's regards to service need that the majority of claims be resolved through arbitration, not claims. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or intellectual home infringement or misappropriation."

There's a bigger hitch, though, specialists said.

"You ought to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of usage are likely unenforceable," Chander said. He was describing 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 in fact tried to impose these terms with monetary charges or injunctive relief," the paper says.

"This is likely for great reason: we believe that the legal enforceability of these licenses is questionable," it adds. That remains in part due to the fact that model 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 "deal limited recourse," it states.

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

Lawsuits between parties in different nations, each with its own legal and enforcement systems, are constantly challenging, Kortz stated.

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 money or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he stated.

Here, OpenAI would be at the grace of another extremely complex location of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and nationwide sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have protected itself better from a distilling attack?

"They could have used technical procedures to obstruct repetitive access to their website," Lemley said. "But doing so would likewise disrupt regular clients."

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

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

"We know that groups in the PRC are actively working to use methods, including what's referred to as distillation, to attempt to duplicate sophisticated U.S. AI designs," Rhianna Donaldson, an OpenAI representative, informed BI in an emailed declaration.