OpenAI and classihub.in the White House have accused DeepSeek of using ChatGPT to cheaply 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 might apply however are mainly unenforceable, they state.
This week, OpenAI and the White House implicated 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 information trove to quickly and a design that's now nearly as good.

The Trump administration's top AI czar said this training procedure, called "distilling," totaled up to intellectual residential or commercial property theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not stating whether the business prepares to pursue legal action, instead assuring what a spokesperson called "aggressive, proactive countermeasures to safeguard our technology."

But could it? Could it sue DeepSeek on "you stole our content" premises, 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 postured this concern to professionals in technology law, who stated 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 tough time showing a copyright or copyright claim, these lawyers stated.

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

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

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

"There's a huge question in copyright law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unguarded facts," he included.

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

That's unlikely, the legal representatives stated.

OpenAI is already on the record in The New York Times' copyright case arguing that training AI is an allowed "reasonable use" exception to copyright defense.

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

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

"Maybe it's more transformative to turn news short articles into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a design into another model," as DeepSeek is said to have actually done, Kortz said.

"But this still puts OpenAI in a pretty tricky circumstance with regard to the line it's been toeing relating to reasonable usage," 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 includes its own set of issues, said Anupam Chander, who teaches technology law at Georgetown University.

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The terms of service for Big Tech chatbots like those established by OpenAI and Anthropic forbid utilizing their material as training fodder for a contending AI model.

"So maybe 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,' however that you gained from 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 regards to service require that the majority of claims be fixed through arbitration, not claims. There's an exception for lawsuits "to stop unapproved usage or abuse of the Services or intellectual residential or commercial property violation or misappropriation."

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

"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 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 developer has really attempted to implement these terms with financial penalties or injunctive relief," the paper states.

"This is likely for excellent reason: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part since model outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited recourse," it says.

"I think they are likely unenforceable," Lemley informed BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and since courts generally won't implement arrangements not to complete in the absence of an IP right that would avoid that competition."

Lawsuits in between parties in different countries, 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 an US court or arbitrator, "in order to get DeepSeek to turn over cash 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 extremely complicated location of law - the enforcement of foreign judgments and the balancing of individual and business rights and national sovereignty - that stretches back to before the founding of the US.

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

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

"They could have used technical measures to block repeated access to their site," Lemley said. "But doing so would likewise interfere with typical consumers."

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

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

"We know that groups in the PRC are actively working to utilize methods, including what's known as distillation, to attempt to duplicate advanced U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.