OpenAI and the White House have implicated DeepSeek of using ChatGPT to cheaply train its brand-new chatbot.
- Experts in tech law say OpenAI has little option under copyright and agreement law.
- OpenAI’s terms of use might apply however are mainly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something to theft.

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

The Trump administration’s top AI czar said this training process, nerdgaming.science called “distilling,” totaled up to intellectual residential or commercial property theft. OpenAI, meanwhile, informed Business Insider and other outlets that it’s examining whether “DeepSeek might have inappropriately distilled our models.”

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

But could it? Could it take legal action against DeepSeek on “you took our material” grounds, similar to 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 specialists in innovation law, who stated 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 tough time proving an intellectual residential or commercial property or copyright claim, these lawyers stated.

“The question is whether ChatGPT outputs” - indicating the responses it generates in reaction to questions - “are copyrightable at all,” Mason Kortz of Harvard Law School said.

That’s since it’s uncertain whether the responses ChatGPT spits out certify as “imagination,” he said.

“There’s a doctrine that says imaginative expression is copyrightable, but realities and ideas are not,” Kortz, who teaches at Harvard’s Cyberlaw Clinic, stated.

“There’s a huge question in copyright law today about whether the outputs of a generative AI can ever make up creative expression or if they are necessarily unprotected realities,” he added.

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

That’s not likely, the attorneys stated.

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

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

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

“Maybe it’s more transformative to turn news short articles into a model” - as the Times implicates 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 pretty predicament with regard to the line it’s been toeing concerning fair use,” he added.

A breach-of-contract lawsuit is most likely

A breach-of-contract suit is much likelier than an IP-based lawsuit, though it features 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 developed by OpenAI and Anthropic forbid using their content as training fodder for a contending AI model.

“So maybe that’s the claim you may possibly 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 Kortz said. OpenAI’s terms of service need that many claims be dealt with through arbitration, not claims. There’s an exception for suits “to stop unauthorized usage or abuse of the Services or intellectual residential or commercial property infringement or misappropriation.”

There’s a larger hitch, though, 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 said. 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 Infotech Policy.

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

“This is likely for great factor: we believe that the legal enforceability of these licenses is doubtful,” it adds. That remains in part since model outputs “are mostly not copyrightable” and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act “offer limited option,” it states.

“I think they are most likely unenforceable,” Lemley informed BI of OpenAI’s regards to service, “due to the fact that DeepSeek didn’t take anything copyrighted by OpenAI and since courts usually won’t enforce agreements not to contend in the absence of an IP right that would prevent that competitors.”

Lawsuits between celebrations in various countries, each with its own legal and enforcement systems, utahsyardsale.com are constantly challenging, Kortz stated.

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 come down to the Chinese legal system,” he stated.

Here, OpenAI would be at the mercy of another very complex location of law - the enforcement of foreign judgments and the balancing of private and business rights and national sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have safeguarded itself better from a distilling incursion?

“They might have used technical steps to block repetitive access to their site,” Lemley said. “But doing so would also hinder typical customers.”

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

Representatives for DeepSeek did not instantly react to a demand for macphersonwiki.mywikis.wiki comment.

“We know that groups in the PRC are actively working to utilize methods, including what’s called distillation, to attempt to reproduce innovative U.S. AI designs,” Rhianna Donaldson, an OpenAI representative, informed BI in an emailed statement.