OpenAI and the White House have accused DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under copyright and agreement law.
- OpenAI’s terms of usage might apply but are largely unenforceable, they say.
Today, OpenAI and the White House accused DeepSeek of something akin to theft.

In a flurry of press declarations, photorum.eclat-mauve.fr they said the Chinese upstart had bombarded OpenAI’s chatbots with inquiries and hoovered up the resulting data trove to quickly and cheaply train a model that’s now practically as good.

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

OpenAI is not stating whether the business plans to pursue legal action, instead promising what a spokesperson described “aggressive, proactive countermeasures to safeguard our innovation.”

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

BI posed this concern to professionals in innovation law, parentingliteracy.com who said 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 a copyright or copyright claim, these legal representatives said.

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

That’s because it’s uncertain whether the responses ChatGPT spits out qualify as “creativity,” he stated.

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

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

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

That’s not likely, the legal representatives said.

OpenAI is already on the record in The New york city Times’ copyright case arguing that training AI is an allowed “reasonable use” exception to copyright security.

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

There may 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 stated to have actually done, utahsyardsale.com Kortz stated.

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

A breach-of-contract claim is more likely

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

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

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

“Not, ‘You copied something from me,’ however that you benefited from my design to do something that you were not allowed to do under our contract.”

There may be a hitch, Chander and [forum.batman.gainedge.org](https://forum.batman.gainedge.org/index.php?action=profile