OpenAI and the White House have actually implicated DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law state OpenAI has little option under copyright and contract 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 akin to theft.

In a flurry of press declarations, they stated the Chinese upstart had bombarded OpenAI’s chatbots with inquiries and hoovered up the resulting information trove to quickly and inexpensively train a design that’s now nearly as excellent.

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

OpenAI is not saying whether the company prepares to pursue legal action, rather assuring what a representative termed “aggressive, proactive countermeasures to protect our technology.”

But could it? Could it sue DeepSeek on “you took our material” grounds, just like the grounds OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York Times and other news outlets?

BI presented this question to experts in technology law, who said difficult DeepSeek in the courts would be an uphill struggle for iuridictum.pecina.cz OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a difficult time proving an intellectual residential or commercial property or copyright claim, these lawyers stated.

“The concern is whether ChatGPT outputs” - meaning the responses it creates in response to questions - “are copyrightable at all,” Mason Kortz of Harvard Law School said.

That’s since it’s unclear whether the answers ChatGPT spits out qualify as “imagination,” he said.

“There’s a teaching that says creative expression is copyrightable, but realities and concepts are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, said.

“There’s a big question in intellectual home law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are necessarily unprotected truths,” he included.

Could OpenAI roll those dice anyway and claim that its outputs are safeguarded?

That’s unlikely, the lawyers said.

OpenAI is currently on the record in The New York Times’ copyright case arguing that training AI is a permitted “reasonable usage” exception to copyright security.

If they do a 180 and tell DeepSeek that training is not a fair usage, “that might return to kind of bite them,” Kortz said. “DeepSeek could state, ‘Hey, weren’t you just saying that training is fair use?’”

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

“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 design into another design,” as DeepSeek is stated to have done, Kortz said.

“But this still puts OpenAI in a quite predicament with regard to the line it’s been toeing regarding fair usage,” he added.

A breach-of-contract suit is more most likely

A breach-of-contract suit is much likelier than an IP-based claim, though it features its own set of problems, lespoetesbizarres.free.fr stated Anupam Chander, who teaches innovation law at Georgetown University.

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The regards to service for Big Tech chatbots like those established by OpenAI and Anthropic forbid using their content as training fodder for a competing AI model.

“So maybe that’s the suit you might perhaps bring - a contract-based claim, not an IP-based claim,” Chander said.

“Not, ‘You copied something from me,’ but that you benefited from my model to do something that you were not permitted to do under our contract.”

There might be a hitch, Chander and Kortz stated. OpenAI’s terms of service require that most claims be fixed through arbitration, not claims. There’s an exception for lawsuits “to stop unauthorized use or abuse of the Services or copyright violation or misappropriation.”

There’s a bigger drawback, however, [forum.batman.gainedge.org](https://forum.batman.gainedge.org/index.php?action=profile