OpenAI has Little Legal Recourse Versus DeepSeek, Tech Law Experts Say

OpenAI and the White House have implicated DeepSeek of utilizing ChatGPT to inexpensively train its brand-new chatbot.
- Experts in tech law state OpenAI has little option under intellectual property and contract law.
- OpenAI's regards to usage may apply however are mostly unenforceable, they state.
Today, OpenAI and the White House implicated DeepSeek of something similar to theft.

In a flurry of press declarations, they said the Chinese upstart had actually bombarded OpenAI's chatbots with queries and hoovered up the resulting information trove to rapidly and cheaply train a design that's now almost as excellent.

The Trump administration's leading AI czar stated this training process, called "distilling," totaled up to copyright theft. OpenAI, meanwhile, told Business Insider and other outlets that it's examining whether "DeepSeek may have wrongly distilled our designs."

OpenAI is not saying whether the business prepares to pursue legal action, instead promising what a spokesperson termed "aggressive, proactive countermeasures to safeguard our technology."

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

BI positioned this concern to professionals in technology law, who stated challenging DeepSeek in the courts would be an uphill battle for OpenAI now that the content-appropriation shoe is on the other foot.

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

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

That's because it's unclear whether the answers ChatGPT spits out qualify as "imagination," he said.

"There's a teaching that says innovative expression is copyrightable, however facts and ideas are not," Kortz, who at Harvard's Cyberlaw Clinic, said.

"There's a big question in copyright law right now about whether the outputs of a generative AI can ever constitute imaginative expression or if they are necessarily unguarded truths," he added.

Could OpenAI roll those dice anyway and claim that its outputs are protected?

That's not likely, the attorneys said.

OpenAI is currently on the record in The New York Times' copyright case arguing that training AI is an allowed "reasonable use" exception to copyright defense.

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

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

"Maybe it's more transformative to turn news short articles into a design" - as the Times accuses OpenAI of doing - "than it is to turn outputs of a model into another design," as DeepSeek 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 concerning fair usage," he included.

A breach-of-contract claim is more likely

A breach-of-contract lawsuit is much likelier than an IP-based suit, though it features its own set of issues, stated Anupam Chander, garagesale.es 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 utilizing their content as training fodder for a competing AI design.

"So perhaps 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 gained from my design to do something that you were not allowed to do under our agreement."

There might be a drawback, Chander and Kortz said. OpenAI's regards to service require that many claims be fixed through arbitration, not claims. There's an exception for lawsuits "to stop unapproved use or abuse of the Services or copyright violation or misappropriation."

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

"You must understand that the brilliant scholar Mark Lemley and a coauthor argue that AI regards to 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 design creator has really tried to impose these terms with monetary penalties or injunctive relief," the paper states.

"This is most likely for good factor: we believe that the legal enforceability of these licenses is doubtful," it includes. That's in part due to the fact that model outputs "are mainly not copyrightable" and due to the fact that laws like the Digital Millennium Copyright Act and the Computer Fraud and Abuse Act "deal minimal recourse," it states.

"I think they are most likely unenforceable," Lemley told BI of OpenAI's regards to service, "since DeepSeek didn't take anything copyrighted by OpenAI and because courts typically won't impose contracts not to complete in the lack of an IP right that would prevent that competitors."

Lawsuits in between celebrations in different nations, each with its own legal and enforcement systems, are constantly difficult, 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 money or stop doing what it's doing, the enforcement would boil down to the Chinese legal system," he said.

Here, galgbtqhistoryproject.org OpenAI would be at the mercy of another incredibly complicated location of law - the enforcement of foreign judgments and the balancing of specific and business rights and nationwide sovereignty - that extends back to before the starting of the US.

"So this is, a long, made complex, stuffed procedure," Kortz included.

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

"They might have utilized technical steps to obstruct repeated access to their site," Lemley said. "But doing so would also disrupt regular clients."

He included: "I don't believe they could, or should, have a valid legal claim against the searching of uncopyrightable information from a public website."

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

"We understand that groups in the PRC are actively working to use techniques, including what's referred to as distillation, to try to duplicate advanced U.S. AI models," Rhianna Donaldson, an OpenAI representative, told BI in an emailed statement.