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

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 recourse under copyright and agreement law.
- OpenAI's regards to usage may apply but are mostly unenforceable, they say.
This week, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press statements, they stated the Chinese upstart had bombarded OpenAI's chatbots with queries and hoovered up the resulting data trove to rapidly and inexpensively train a model that's now as excellent.

The Trump administration's leading AI czar said this training procedure, called "distilling," amounted to copyright theft. OpenAI, meanwhile, informed Business Insider and other outlets that it's investigating whether "DeepSeek may 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 secure our innovation."

But could it? Could it take legal action against DeepSeek on "you took our material" grounds, similar to the premises OpenAI was itself sued on in an ongoing copyright claim submitted in 2023 by The New York City Times and other news outlets?

BI presented this concern to experts in innovation law, kenpoguy.com who said difficult DeepSeek in the courts would be an uphill fight for OpenAI now that the content-appropriation shoe is on the other foot.

OpenAI would have a tough time showing an intellectual home or copyright claim, these attorneys stated.

"The question is whether ChatGPT outputs" - indicating the responses it produces in action to questions - "are copyrightable at all," Mason Kortz of Harvard Law School stated.

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

"There's a teaching that states creative expression is copyrightable, however realities and concepts are not," Kortz, who teaches at Harvard's Cyberlaw Clinic, said.

"There's a big question in intellectual home law right now about whether the outputs of a generative AI can ever make up imaginative expression or if they are always vulnerable facts," he included.

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

That's unlikely, the lawyers stated.

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

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

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

"Maybe it's more transformative to turn news posts into a design" - 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 predicament with regard to the line it's been toeing relating to reasonable usage," he added.

A breach-of-contract suit 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 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 using their content as training fodder for a competing AI model.

"So possibly 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,' however that you took advantage of my model to do something that you were not allowed to do under our contract."

There may be a drawback, Chander and Kortz said. OpenAI's terms of service need that many claims be solved through arbitration, not suits. There's an exception for lawsuits "to stop unauthorized usage or abuse of the Services or intellectual property infringement or misappropriation."

There's a bigger drawback, historydb.date though, experts said.

"You need to understand that the fantastic scholar Mark Lemley and a coauthor argue that AI regards to use are most likely unenforceable," Chander stated. He was referring to a January 10 paper, "The Mirage of Expert System 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 in fact attempted to impose these terms with financial charges or injunctive relief," the paper says.

"This is likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it adds. That remains in part since design outputs "are mostly not copyrightable" and trade-britanica.trade since laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "offer limited recourse," it says.

"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 generally won't impose arrangements 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 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 boil down to the Chinese legal system," he said.

Here, OpenAI would be at the mercy of another very complicated area of law - the enforcement of foreign judgments and the balancing of individual and business rights and nationwide sovereignty - that extends back to before the founding of the US.

"So this is, a long, made complex, stuffed process," Kortz added.

Could OpenAI have protected itself better from a distilling incursion?

"They might have used technical measures to obstruct repetitive access to their website," Lemley stated. "But doing so would also disrupt normal consumers."

He included: "I do not think they could, or should, have a valid legal claim versus the browsing of uncopyrightable info from a public website."

Representatives for DeepSeek did not right away respond to an ask for remark.

"We understand that groups in the PRC are actively working to utilize methods, including what's referred to as distillation, to attempt to replicate sophisticated U.S. AI models," Rhianna Donaldson, an OpenAI spokesperson, informed BI in an emailed statement.