OpenAI and the White House have actually accused DeepSeek of utilizing ChatGPT to cheaply train its new chatbot.
- Experts in tech law say OpenAI has little recourse under copyright and agreement law.
- OpenAI’s regards to use may apply but are mostly unenforceable, they state.
This week, OpenAI and the White House implicated DeepSeek of something comparable 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 rapidly and cheaply train a design that’s now almost as good.

The Trump administration’s leading AI czar said this training procedure, called “distilling,” amounted to intellectual residential or commercial property theft. OpenAI, meanwhile, told Business Insider and other outlets that it’s examining whether “DeepSeek might have wrongly distilled our designs.”

OpenAI is not saying whether the business plans to pursue legal action, oke.zone instead guaranteeing what a representative termed “aggressive, proactive countermeasures to secure our innovation.”

But could it? Could it take legal action against 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 positioned this concern to professionals in innovation law, who said 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 hard time showing a copyright or copyright claim, these legal representatives stated.

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

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

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

“There’s a big concern in intellectual property law right now about whether the outputs of a generative AI can ever constitute creative expression or if they are necessarily vulnerable facts,” he included.

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

That’s not likely, the lawyers said.

OpenAI is already on the record in The New york city 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 reasonable usage, “that might return to sort of bite them,” Kortz said. “DeepSeek could say, ‘Hey, weren’t you just saying that training is reasonable usage?’”

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

“Maybe it’s more transformative to turn news posts into a design” - as the Times accuses OpenAI of doing - “than it is to turn outputs of a design into another model,” as 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 reasonable use,” he added.

A breach-of-contract claim is most likely

A breach-of-contract lawsuit is much likelier than an IP-based claim, though it includes its own set of problems, 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 using their content as training fodder for a contending AI model.

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

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

There may be a hitch, Chander and Kortz stated. OpenAI’s regards to service need that a lot of claims be dealt with through arbitration, not suits. There’s an exception for claims “to stop unauthorized usage or abuse of the Services or intellectual home infringement or misappropriation.”

There’s a larger drawback, though, experts said.

“You ought to know that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of use are most likely unenforceable,” Chander 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 Infotech Policy.

To date, “no design creator has really tried to enforce these terms with financial charges or injunctive relief,” the paper states.

“This is most likely for great factor: we believe that the legal enforceability of these licenses is questionable,” it adds. That’s in part because model outputs “are largely not copyrightable” and due to the fact that 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 terms of service, “because DeepSeek didn’t take anything copyrighted by OpenAI and due to the fact that courts usually will not implement agreements not to contend in the lack of an IP right that would prevent that competitors.”

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

Even if OpenAI cleared all the above obstacles 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 said.

Here, OpenAI would be at the mercy of another exceptionally complicated area of law - the enforcement of foreign judgments and garagesale.es the balancing of specific and corporate rights and national sovereignty - that stretches back to before the founding of the US.

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

Could OpenAI have safeguarded itself better from a distilling attack?

“They might have used technical measures to obstruct repeated access to their site,” Lemley said. “But doing so would also interfere with normal consumers.”

He added: “I don’t believe they could, or should, have a legitimate legal claim versus the browsing of uncopyrightable info from a public website.”

Representatives for DeepSeek did not right away react to an ask for comment.

“We know that groups in the PRC are actively working to use approaches, including what’s known as distillation, to try to replicate advanced U.S. AI models,” Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.