OpenAI and the White House have implicated DeepSeek of using ChatGPT to inexpensively train its new chatbot.
- Experts in tech law state OpenAI has little recourse under intellectual residential or commercial property and contract law.
- OpenAI’s terms of usage might apply however are largely unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something akin to theft.

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

The Trump administration’s top AI czar said this training process, called “distilling,” amounted to intellectual home theft. OpenAI, meanwhile, told Business Insider and other outlets that it’s examining whether “DeepSeek may 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 safeguard our technology.”

But could it? Could it take legal action against DeepSeek on “you took our content” premises, setiathome.berkeley.edu similar to the premises OpenAI was itself took legal action against on in a continuous copyright claim filed in 2023 by The New York City Times and other news outlets?

BI posed this question to experts in innovation law, who stated difficult 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 an intellectual property or copyright claim, these lawyers stated.

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

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

“There’s a teaching that states creative expression is copyrightable, however truths and ideas are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, stated.

“There’s a big concern in copyright law today about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unprotected truths,” he included.

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

That’s not likely, the lawyers said.

OpenAI is currently on the record in The New york city Times’ copyright case arguing that training AI is an allowed “fair usage” exception to copyright protection.

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

There might be a distinction 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 regarding fair use,” he included.

A breach-of-contract claim is most likely

A breach-of-contract claim is much likelier than an IP-based claim, though it comes with 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 established by OpenAI and Anthropic forbid utilizing their material as training fodder for a competing AI design.

“So maybe that’s the lawsuit you may possibly bring - a contract-based claim, not an IP-based claim,” Chander stated.

“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 hitch, Chander and Kortz said. OpenAI’s regards to service require that most claims be fixed 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 drawback, though, experts stated.

“You ought to understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to usage are most likely unenforceable,” stated. 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 actually attempted to implement these terms with monetary penalties or injunctive relief,” the paper says.

“This is most likely for good reason: we think that the legal enforceability of these licenses is doubtful,” it includes. That remains in part because design outputs “are largely not copyrightable” and since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act “offer limited recourse,” it states.

“I believe they are most likely unenforceable,” Lemley told BI of OpenAI’s regards to service, “since DeepSeek didn’t take anything copyrighted by OpenAI and since courts normally will not implement agreements not to contend in the absence of an IP right that would avoid that competition.”

Lawsuits in between parties in different countries, trademarketclassifieds.com each with its own legal and enforcement systems, are always tricky, Kortz said.

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 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 mercy of another extremely complex area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and national sovereignty - that stretches back to before the starting of the US.

“So this is, a long, made complex, laden process,” Kortz added.

Could OpenAI have protected itself better from a distilling incursion?

“They might have utilized technical procedures to obstruct repetitive access to their site,” Lemley stated. “But doing so would also disrupt normal customers.”

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

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

“We know that groups in the PRC are actively working to utilize approaches, including what’s known as distillation, to attempt to duplicate sophisticated U.S. AI designs,” Rhianna Donaldson, an OpenAI representative, told BI in an emailed declaration.