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1 OpenAI has Little Legal Recourse against DeepSeek, Tech Law Experts Say

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 option under intellectual property and contract law.
- OpenAI's terms of use might use however are mostly unenforceable, they say.
This week, OpenAI and the White House implicated of something comparable to theft.

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

The Trump administration's leading AI czar stated this training procedure, called "distilling," totaled up to copyright theft. OpenAI, on the other hand, informed Business Insider and demo.qkseo.in other outlets that it's investigating whether "DeepSeek might have wrongly distilled our models."

OpenAI is not stating whether the company prepares to pursue legal action, rather guaranteeing what a representative described "aggressive, proactive countermeasures to safeguard our technology."

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

BI positioned this concern to professionals in innovation law, who stated challenging 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 wiki.insidertoday.org copyright claim, these lawyers said.

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

That's due to the fact that it's uncertain whether the responses ChatGPT spits out certify as "creativity," he stated.

"There's a doctrine that says innovative expression is copyrightable, however facts and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, stated.

"There's a huge concern in copyright law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are always unprotected facts," he added.

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

That's not likely, the legal representatives stated.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is a permitted "fair usage" exception to copyright defense.

If they do a 180 and tell DeepSeek that training is not a reasonable usage, "that may come back to sort of bite them," Kortz said. "DeepSeek could say, 'Hey, weren't you simply stating that training is fair usage?'"

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

"Maybe it's more transformative to turn news 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 stated.

"But this still puts OpenAI in a pretty difficult situation with regard to the line it's been toeing concerning reasonable use," he added.

A breach-of-contract suit is most likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, though it includes its own set of problems, stated Anupam Chander, who teaches technology law at Georgetown University.

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The regards to service for Big Tech chatbots like those developed by OpenAI and Anthropic forbid utilizing their content as training fodder for a competing AI model.

"So maybe that's the lawsuit you might perhaps bring - a contract-based claim, not an IP-based claim," Chander said.

"Not, 'You copied something from me,' but that you took advantage of my design to do something that you were not enabled to do under our contract."

There may be a hitch, Chander and Kortz stated. OpenAI's terms of service require that a lot of claims be solved through arbitration, not claims. There's an exception for claims "to stop unapproved use or abuse of the Services or intellectual home infringement or misappropriation."

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

"You must know that the dazzling scholar Mark Lemley and a coauthor argue that AI terms of usage are most likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Artificial Intelligence 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 model developer has in fact tried 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's in part because design outputs "are mainly not copyrightable" and since laws like the Digital Millennium Copyright Act and akropolistravel.com the Computer Fraud and Abuse Act "deal minimal recourse," 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 due to the fact that courts usually won't implement arrangements not to compete in the absence of an IP right that would prevent that competition."

Lawsuits between parties in various countries, 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 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 grace of another very complicated area of law - the enforcement of foreign judgments and the balancing of specific and corporate rights and nationwide sovereignty - that extends back to before the founding of the US.

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

Could OpenAI have protected itself much better from a distilling incursion?

"They could have utilized technical steps to block repetitive access to their site," Lemley said. "But doing so would likewise interfere with regular customers."

He included: "I don't think they could, or should, have a legitimate legal claim against the browsing of uncopyrightable details from a public site."

Representatives for DeepSeek did not right away respond to a request for remark.

"We understand that groups in the PRC are actively working to utilize techniques, including what's referred to as distillation, to try to reproduce innovative U.S. AI designs," Rhianna Donaldson, an OpenAI spokesperson, told BI in an emailed declaration.