OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under intellectual home and agreement law.
- OpenAI’s terms of usage may use but are mainly unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press statements, they said the Chinese upstart had bombarded OpenAI’s chatbots with queries and hoovered up the resulting data trove to quickly and inexpensively train a design that’s now nearly as good.

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

OpenAI is not stating whether the business prepares to pursue legal action, rather guaranteeing what a representative called “aggressive, proactive countermeasures to protect our technology.”

But could it? Could it take legal action against DeepSeek on “you stole our content” premises, much like the grounds OpenAI was itself took legal action against on in a continuous copyright claim filed in 2023 by The New York Times and other news outlets?

BI posed this concern to specialists in innovation law, who stated 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 showing a copyright or copyright claim, these legal representatives stated.

“The concern is whether ChatGPT outputs” - indicating the answers it produces in response to inquiries - “are copyrightable at all,” Mason Kortz of Harvard Law School stated.

That’s due to the fact that it’s uncertain whether the responses ChatGPT spits out qualify as “creativity,” he said.

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

“There’s a substantial concern in copyright law right now about whether the outputs of a generative AI can ever make up innovative expression or if they are always unprotected facts,” he added.

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

That’s not likely, the lawyers said.

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

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 stated. “DeepSeek could say, ‘Hey, weren’t you just stating that training is fair usage?’”

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

“Maybe it’s more transformative to turn news articles 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 said to have actually done, Kortz said.

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

A breach-of-contract lawsuit is more most likely

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

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

“Not, ‘You copied something from me,’ but that you gained from my model to do something that you were not allowed to do under our agreement.”

There might be a drawback, Chander and Kortz stated. OpenAI’s terms of service require that many claims be through arbitration, not claims. There’s an exception for suits “to stop unapproved use or abuse of the Services or copyright infringement or misappropriation.”

There’s a bigger hitch, however, specialists stated.

“You need to understand that the dazzling scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable,” Chander stated. He was describing 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 in fact attempted to impose these terms with financial charges or injunctive relief,” the paper states.

“This is likely for excellent factor: we believe that the legal enforceability of these licenses is questionable,” it includes. That’s in part because model outputs “are largely not copyrightable” and because laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act “offer minimal option,” it says.

“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 since courts normally will not impose contracts not to contend in the lack of an IP right that would avoid that competitors.”

Lawsuits in between celebrations in various countries, each with its own legal and enforcement systems, are constantly difficult, 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 cash 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 very complicated area of law - the enforcement of foreign judgments and the balancing of specific and business rights and nationwide sovereignty - that extends back to before the starting of the US.

“So this is, a long, complicated, laden procedure,” Kortz included.

Could OpenAI have protected itself better from a distilling attack?

“They could have utilized technical steps to obstruct repeated access to their site,” Lemley stated. “But doing so would likewise interfere with typical consumers.”

He added: “I don’t think they could, or should, have a valid legal claim against the browsing of uncopyrightable information from a public website.”

Representatives for DeepSeek did not instantly react to a request for comment.

“We understand that groups in the PRC are actively working to utilize techniques, including what’s known as distillation, to try to duplicate advanced U.S. AI designs,” Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed declaration.